IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO M.F.A.No.5455/2013 C/W M.F.A.Nos.5395/2013, 5394/2013, 5454/2013 (MV) IN MFA No.5455/2013: BETWEEN:
BABY ARSHIYA D/O RIYAZ PASHA AGED ABOUT 13 YEARS R/AT GOPIPALYA NO.13, ‘B’ CROSS, PADARAYANAPURA, MYSORE ROAD, BANGALORE – 560 058.
NOW R/O GOODS SHED COLONY S.R.S. HOUSE ROAD TUMKUR SINCE MINOR, REPRESENTED BY HER NATURAL GUARDIAN MOTHER SMT. JABEENA W/O RYAZ PASHA (BY SRI M V MAHESWARAPPA, ADVOCATE) AND:
1. SRI SHIVAPPA S/O BASAPPA AGED ABOUT 42 YEARS R/O MADDANAHALLI MUTHUGADAHALLI POST, ..APPELLANT MAYASANDRA HOBLI TURUVEKERE TALUK TUMKUR DISTRICT- 572 101.
(R.C.OWNER OF LUGGAGE AUTO BEARING REGN.No.KA-44-3439) 2. ICICI LOMBARD GENERAL INSURANCE COMPANY LIMITED ZENITA HOUSE, KESHAVARAO KHADYA MARG, 2ND FLOOR MAHALAXMI, MUMBAI - 400 034. REP. BY ITS DIVISIONAL MANAGER ICICI LOMBARD GENERAL INSURANCE COMPANY LIMITED, 2ND FLOOR, V.S.R. COMPLEX HOSUR ROAD, MADIVALA BANGALORE – 560 091.
(CERTIFICATE/POLICY No.3003/621/39 335/00/000 VALID FROM 19.11.2010 TO 18.11.2011) ..RESPONDENTS (BY SRI D MANJUNATH, ADVOCATE FOR R2, SRI RAVISH M.G, ADVOCATE FOR R1) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:28.01.2013 PASSED IN MVC NO.980/2011 ON THE FILE OF THE I/c III ADDITIONAL DISTRICT JUDGE, MACT, TUMKUR, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
IN MFA No.5395/2013: BETWEEN:
SRI SHIVAPPA S/O BASAPPA AGED ABOUT 43 YEARS R/A MADDANAHALLI MUTHUGADAHALLI POST MAYASANDRA HOBLI TURUVEKER TALUK TUMAKUR DISTRICT-572 221.
(BY SRI RAVISHA M G, ADVOCATE) AND:
..APPELLANT 1. ICICI LOMBARD GENERAL INSURANCE CO. LTD., ZENITA HOUSE KESHAVARAO KHADYA MARG 2ND FLOOR, MAHALAXMI MUMBAI-400 034.
REP. BY ITS DIVISIONAL MANAGER ICICI LOMBARD GENERAL INSURANCE CO. LTD., 2ND FLOOR V. S. R. COMPEX, HOSUR ROAD MADIVALA, BANGALORE – 560 068.
2. BABY ARSHIYA D/O RIYAZ PASHA AGED ABOUT 14 YEARS R/A GORIPALYA No.13 ’B’ CROSS, PADARAYANAPURA MYSORE ROAD, BANGALORE.
NOW R/O GOODS SHED COLONY S R S HOUSE ROAD, TUMKUR ROAD REP. BY HIS NATURAL GUARDIAN MOTHER JABEENA W/O RIYAZ PASHA PIN CODE – 572 101.
..RESPONDENTS (BY SRI D MANJUANTH, ADVOCATE FOR R1 SRI M V MAHESWARAPPA, ADVOCATE FOR R2) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:28.01.2013 PASSED IN MVC NO.980/2011 ON THE FILE OF THE I/C III ADDL. DISTRICT JUDGE & MACT, TUMKUR AWARDING COMPENSATION OF RS.20,000/- WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION.
IN MFA No.5394/2013: BETWEEN:
SRI SHIVAPPA S/O BASAPPA AGED ABOUT 43 YEARS R/A MADDANAHALLI MUTHUGADAHALLI POST MAYASANDRA HOBLI TURUVEKER TALUK TUMAKUR DISTRICT – 572 221 (BY SRI RAVISHA M G, ADVCOATE) AND:
1. ICICI LOMBARD GENERAL INSURANCE CO. LTD., ZENITA HOUSE KESHAVARAO KHADYA MARG 2ND FLOOR, MAHALAXMI MUMBAI-400 034.
REP. BY ITS DIVISIONAL MANAGER ICICI LOMBARD GENERAL INSURANCE CO., LTD., 2ND FLOOR, V .S .R. COMPEX HOSUR ROAD, MADIVALA BANGALORE – 560 068 ..APPELLANT 2. THOUSIFF S/O MEHABOOB SHARIFF AGED ABOUT 37 YEARS 3. JUGNU W/O THOUSIF AGED ABOUT 32 YEARS RES. No.2 & 3 ARE R/O GOODS SHED COLONY S .R. S. HOUSE ROAD TUMKUR – 572 101.
..RESPONDENTS (BY SRI M V MAHESWARAPPA, ADVOCATE FOR R2 & R3, SRI B PRADEEP, ADVOCATE FOR R1) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:28.01.2013 PASSED IN MVC NO.979/2011 ON THE FILE OF THE I/c III ADDITIONAL DISTRICT JUDGE, MACT, TUMKUR, AWARDING A COMPENSATION OF RS.1,47,000/- WITH INTEREST @ 6% P.A FROM THE DATE OF PETITION TILL REALIZATION OF THE AWARD AMOUNT.
IN MFA No.5454/2013: BETWEEN:
1.SRI. THOUSIFF S/O MEHABOOB SHARIFF AGED ABOUT 36 YEARS 2. SMT. JUGNU W/O THOUSIFF AGED ABOUT 31 YEARS BOTH APPELLANTS ARE R/O GOODS SHED COLONY S .R .S. HOUSE ROAD TUMKUR – 572 201.
..APPELLANTS (BY SRI M V MAHESWARAPPA, ADVOCATE) AND:
1. SRI SHIVAPPA S/O BASAPPA AGED ABOUT 42 YEARS R/O MADDANAHALLI MUTHUGADAHALLI POST MAYASANDRA HOBLI TURUVEKERE TLAUK TUMKUR DISTRICT – 562 130. (R .C OWNER OF LUGGAGE AUTO BEARING REGN. NO.KA-44-3439) 2. ICICI LOMBARD GENERAL INSURANCE COMPANY LIMITED ZENITA HOUSE, KESHAVARAO KHADYA MARG, 2ND FLOOR, MAHALAXMI, MUMBAI-400 034. REP. BY ITS DIVISIONAL MANAGER ICICI LOMBARD GENERAL INSURANCE COMPANY LIMITED 2ND FLOOR, V .S .R. COMPLEX HOSUR RAOD, MADIVALA BANGALORE – 560 067.
(CERIFICATE/POLICY No.3003/621/ 39/335/00/000 VALID FROM 19.11.2010 TO 18.11.2011) ..RESPONDENTS (BY SRI M G RAVISHA, ADVOCATE FOR R1, SRI D MANJUNATH, ADVOCATE FOR R2) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:28.01.2013 PASSED IN MVC NO.979/2011 ON THE FILE OF THE I/C III ADDITIONAL DISTRICT JUDGE & MACT, TUMKUR, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE MFAs COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT M.F.A.Nos.5395/2013 and 5394/2013 are preferred by the owner and MFA Nos.5455/2013 is preferred by Baby Arshiya, claimant in MVC No.980/2011 and M.F.A.No.5454/2013 is preferred by parents of deceased Ayeesha, claimants in MVC No.979/2011 against the Judgment and award dated 28.01.2013 passed by the III Additional District Judge and MACT, Tumkur.
2. In order to avoid confusion and overlapping, the parties are hereinafter referred with reference to their status and rankings as it stood before the Tribunal.
3. Road traffic accident is said to have taken place on 11.06.2011 when Ayeesha and Arshiya and others were traveling in Auto bearing registration No.KA-06- A-5467 from Tumkur towards Dasihali, and when they came near Vadavanagatta village N.H.48 at that time another luggage Auto bearing registration No.KA-44- 3439 driven by its driver came from Mayasandra side with high speed in a rash and negligent manner and dashed against the auto in which petitioners were traveling. Due to impact said Ayeesha, aged 12 years sustained grievous injuries and succumbed to them while taking her to Adi-Chunchnagiri Hospital. Arshiya sustained injuries and took treatment in Adi Chunchanagiri Hospital from 11.06.2011 to 16.06.2011 and spent a sum of Rs.30,000/-for medical expenses. Her age is stated to be 12 years.
4. Insofar as MVC No.979/2011 is concerned Ayeesha is the victim, she suffered grievous injuries and succumbed to them. Claimants are the parents of Ayeesha and they claimed compensation of Rs.6,00,000/- including Rs.35,000/- towards burial ceremonies. MVC No.980/2011 is filed by Baby Arshiya seeking compensation of Rs.5,00,000/- for the injuries sustained.
5. Criminal case came to be registered against the driver of the offending vehicle for the offence punishable under Sections 279, 337 and 304A of IPC. The claimants in both the petitions have stated that the said accident occurred due to rash and negligent driving of the driver of the Auto belonging to respondent No.1 and hence both respondent No.1 and 2 –insurance company are jointly and severally liable to pay compensation.
6. The accident, injuries and death are not disputed. The case pertains to sustaining of injuries by one Ayeesha who succumbed to injuries and in the next one Arshiya, aged 12 years at the time of accident sustained injuries and growing under the custody.
7. Learned Member by considering the oral evidence of PW-1-Thousiff, PW-2-Apsar and PW-3 Jabeena and documentary evidence Exhibits-P-1 to P- 15 and RW-1 and Exhibits R-1 to R-3, partly allowed the claim petitions and granted compensation as under:
SL.
NO.
MVC NO. DESCRIPTION AMOUNT 1. 979/2011 Love and affection Rs. 70,000/-
MFA No.5454/2013 Estate Rs. 70,000/-
Funeral Expenses Rs. 5,000/-
Transportation of Dead body Total compensation Rs. 2,000/-
Rs.1,47,000/-
2. 980/2011 Pain and sufferings Rs. 10,000/-
MFA No.5455/2013 Food and nourishment Transportation expenses Rs. 3,000/- 2,000/-
Medical expenses 5,000/-
Total compensation Rs. 20,000/-
8. It is also necessary to observe that when the matter was taken up for disposal, learned counsel submitted that he had already filed the document however, it was not filed in time but was filed when the matter is posted for Judgment. Learned counsel for owner –Sri M G Ravisha submitted that he has already filed I.A.1/2019 under Order XLI Rule 27 read with Section 151 of C.P.C. seeking permission to produce the documents in M.F.A.No.5395/2013 and M.F.A.No.5394/2013.
9. Thus both the counsels are heard on application.
In the ends of natural justice, said application I.A.1/2019 is allowed and documents are looked into. It is in respect of offending vehicle bearing registration No.KA-44-3439, validity is from 26.03.2011 to 07.02.2021. However the nature of licence granted is to drive non transport vehicle. Said licence is numbered KA-44-20110001236 granted to one Shivappa, S/o Basappa, date of birth 08.02.1971. But this document was not considered by the Tribunal as the same was not filed by the owner. Thus, the learned Member granted Rs.20,000/- in case of injury in MVC No.980/2011 and in case of death in MVC No.979/2011 granted Rs.1,47,000/- and directed the first respondent–owner to pay the compensation amount.
10. In the light of the facts being considered above it is necessary to make a mention that minor is a Member of family. It is not proper to consider the minor as a non earning member of family because though minor does not work and earn cannot be placed in the footings of non earning member. It is in this connection the smartness, complexion and excelling qualities, knowledge of arts and bigger IQ or those which make a child special. It is those kinds of factors to be considered in case of minor.
11. In over all context and circumstances of the case it is necessary to say accident is not disputed, injuries to Baby Arshiya and death of Ayeesha not disputed. Insofar as liability is concerned it was fastened on the owner. In this connection the following decisions are referred:
(i) (2014) 1 SCC (Cri) 241 – Kishan Gopal and anr Vs Lala and others – A. Motor Vehicles Act, 1988 – Ss.166, 168, 170(b), 171 and 173 – Compensation – Quantum- Death of 10 years old child traveling in trolley of the tractor –Parents claiming compensation- Rejected by Tribunal, without appreciating oral and documentary evidence in its proper perspective erroneously, holding that death was not due to rash and negligent driving of the tractor by its driver –Further, High Court though has power to reappreciate the pleadings and evidence on record, declining to do so, mechanically endorsed findings of fact by Tribunal-Validity –Held, concurrent findings of fact are erroneous and invalid and therefore, call for interference – Deceased was 10 years old, who was assisting his parents in their agricultural occupation – Had he been alive would have certainly contributed substantially to the family by working hard – Principles in Lata Wadhwa, (2001) 8 SCC 197 applied – Multiplier of 15 and multiplicand of 30,000 p.a. adopted – Rs.50,000 awarded under conventional heads (in accordance with principles in Susamma Thomas, (1994) 2 SCC 176 in relation to death of children between 10 to 15 years old)- Total compensation of Rs.5,00,000/- with interest @ 9% p.a. awarded- Tort Law- Compensation/damages.
(ii) AIR 2014 SC 736 – Master Mallikarjun Vs Divisional Manager, The National Insurance Company Limited and anr The principle propounded is as under: “Motor Vehicles Act (59 of 1988), S.168 – Just and fair compensation – Child disabled in motor accident – Compensation to be paid calibrated on percentage of disability laid down.
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, Supreme Court is 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 Rs.1 lakh, unless there are exceptional circumstances to take different yardstick. In the instant case, appellant, a child of 12 years suffered disability in a motor accident 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. Hence, the appellant, would be entitled to a total compensation of Rs.3,75,000/- along with interest @ 6% per annum from the date of petition.”
12. I find it is just and proper for the court to consider granting of compensation of Rs.5,00,000/- with interest at 12% p.a. to the claimants-parents of deceased Ayeesha, aged 12 years at the time of accident. However, insofar as Arshiya, learned Member granted an amount of Rs.20,000/-. For classification of heads under which the compensation is granted need not be specifically stated. Here it is a case to be considered for global compensation. In the process I hold that the amount of Rs.20,000/- is insufficient and the same amount requires enhancement at Rs.40,000/-. Insofar as possessing of driving licence by driver of the offending vehicle is concerned, it is licence for non transport vehicle it would mean for non transport vehicle and the contention of the insurance company is that claimants are not entitled for compensation. Considering the rulings in Kishan Gopal’s case supra, I find that amount of Rs.3,53,000/- (Rs.5,00,000-Rs.1,47,000) would be just and ideal compensation to the parents of Ayeesha, as Tribunal has awarded only Rs.1,47,000/-.
13. Learned counsel Sri D Manjunath would submit that either way the liability cannot be saddled on insurance company. He would submit that before the Tribunal owner appeared but did not file written statement. In the circumstances of the case, there are no lapses on the part of the claimants to present and prosecute the case. I do not find that driving licence for a non transport vehicle is not available for a transport vehicle. Hence, there are no lapses. Compensation in both the appeals are enhanced, by Rs.20,000/- in respect of M.F.A.No.5455/2013 and Rs.3,53,000/- in MFA No.5454/2013 together with interest @ 6% p.a.
Hence, the following:
ORDER 1. M.F.A.Nos.5395/2013 and 5394/2013 filed by owner are partly allowed to the extent that liability is saddled on the insurance company.
2. M.F.A.Nos.5455/2013 and 5454/2013 filed by claimants are partly allowed.
3. Judgment and award dated 28.01.2013 passed in MVC Nos.979/2011 and 980/2011 is modified by granting global compensation of Rs.20,000/- in MVC No.980/2011 and Rs.3,53,000/- in MVC No.979/2011 with interest @ 6% p.a.
4. Owner and insurance company are jointly and severally liable to pay the compensation amount with interest.
5. Insurance company is directed to deposit the compensation amount with interest within four weeks from the date of receipt of certified copy of this order.
Sd/- JUDGE SBN