R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO M.F.A.No.2903/2009 (MV) BETWEEN:
DIVISIONAL MANAGER UNITED INDIA INSURANCE CO LTD., DIVISIONAL OFFICE, CKN CHAMBERS # 143/144, I FLOOR, 1ST MAIN ROAD SESHADRIPURAM, BANGALORE – 560 020. NOW REPRESENTED BY ITS REGIONAL MANAGER UNITED INDIA INSURANCE CO LTD., REGIONAL OFFICE, SHANKARANARAYANA BUILDING, No.25, M.G.ROAD BANGALORE – 560 001.
…APPELLANT (BY SRI A N KRISHNA SWAMY, ADVOCATE) AND:
1. KUMARI SHILPA D/O RAMACHANDRAPPA NOW AGED ABOUT 11 YEARS SINCE MINOR REPRESENTED BY FATHER/NATURAL GUARDIAN RAMACHANDRAPPA S/O LATE ERAPPA NOW AGED ABOUT 42 YEARS R/A NEAR HALASAHALLI GATE HOSKOTE, BANGALORE DISTRICT.
2. SMT.SUGUNA W/O T S KRISHNA MURTHY MAJOR, #801, YALLAMMA TEMPLE STREET, MELINAPET, HOSKOTE BANGALORE DISTRICT.
...RESPONDENTS (BY SRI N GOPALKRISHNA, ADVOCATE FOR R1 NOTICE TO R2 IS HELD SUFFICIENT V/O DTD. 18.2.2013) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:10.9.2008 PASSED IN MVC No.4378/2006 ON THE FILE OF III ADDITIONAL JUDGE, AND MEMBER, MACT, BANGALORE (SCCH-18) AWARDING A COMPENSATION OF Rs.2,00,000/- WITH INTEREST AT 6% P.A.FROM THE DATE OF PETITION TILL ITS REALISATION.
THIS MFA COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal is directed against the judgment and award dated 10.09.2008 passed in MVC No.4378/2006 by the III Additional Judge and Member, MACT, Bangalore, (SCCH-18).
2. The appellant- United India Insurance Company Limited questioned the judgment and award of the learned Member as stated above and prays for setting aside the judgment and award which directs him to pay the compensation of Rs.2,00,000/- together with interest at the rate of 6% p.a. from the date of petition till realization.
3. In order to avoid confusion and overlappings, parties hereinafter are referred to with reference to their rankings as it stood before the Tribunal.
4. The incident that gave rise to the initiation of the proceedings is that, on 19.1.2006 at about 4.30 p.m. near KEB Circle, Hoskote Circle, Maxi Cab bearing Registration No.KA.03.6139 was driven in a rash and negligent manner dashed against the petitioner when she was standing at KSRTC bus stop. A criminal case came to be registered in Crime No.41/2006 by Hoskote Police against the driver of the maxi cab. The petitioner received the injuries, sustained permanent disability and incurred expenditure for treatment. Thus, she presented a claim petition seeking an amount of Rs.5,00,000/- as compensation.
5. Before the Tribunal, Insurance Company appeared and filed written statement denying all the allegations made and first respondent remained absent and was set exparte.
6. The learned Member was accommodated with the oral evidence of PWs 1 and 2 and RW1 and documentary evidence of Exs.P1 to P9 and Exs.R1 to R10.
7. The learned Member after hearing the parties considered the case on the basis of the oral and documentary evidence and other materials available on record and partly allowed the petition and granted the compensation as stated above and directed the Insurance Company to deposit the compensation amount which is challenged in this appeal.
8. The learned counsel for the Insurance Company Sri. A.N.Krishna Swamy, would submit that policy claimed to have been issued for the offending vehicle was not in force as on the date of the accident, as the cheque issued by the owner of the vehicle Mrs. Suguna towards subscription was dishonoured for want of sufficient funds and the insurance company communicated the fact of dishonour of cheque for Rs.5,415/-.
9. Learned counsel would emphasizes on the point of consideration and claims the contract of insurance was void abinitio and destitute of legal effects. Thus, he stresses that there existed no valid policy at all.
10. Insofar as injuries are concerned, it is stated that claimant sustained injuries in the accident as under:
Injuries:
1. Cut lacerated wound over 4 x 4 over anterior medial aspect of left leg at tibial tuberosity noted.
2. Underlying bone not exposed 3. Degloving injury.
4. Two more cut lacerated wounds over the postero medial aspect.
5. X-ray showed fracture left tibia at proximal metaphysis with little displacement.
Diagnosis of type II open fracture left tibia was made and that during treatment thorought debridement and primary closure of wound and closed reduction and A/k dorsai slab application done and after 2 days wound inspected and found, blackish at anterior aspect of the wound, doubtful sensation of wound and skin didi not survive. On 25.01.2006 serial excision of the layers of necrosed skin done with skin grafting both front and back of leg and then he had regular dressings, wound healed and fracture united, had regular follow-up till fracture united which took 3½ months. Recently on 20-07-2008 she came with complaints of pain while playing and on walking long distance, difficulty in squatting and sitting in toilet, friends made fun of her at school due to her inability to play with them. And that on examination, he found following disabilities:
Left lower limb eventually rotated from below knee joint noted, wound well healed, right lower limb 74 cms. Left lower limb 72 ½ cms., left lower limb short by 1 ½ cms. Noted and patient not squatting fully on affected limb. X-ray showed fracture united in slightly valgus angle.
And assessed the disability considering the status of limb i.e. shortening, cosmetic disfigurement, pain, knee movement limitation and inversion deformity, at 43% disability to the lower limb and 15% to the whole body.
11. The compensation is reckoned on the basis of the oral and documentary evidence under different heads as under:
enjoyment of life.
4. Pecuniary loss, disfiguration, future prospects and marriage prospects.
Rs. 75,000/-
Total Rs.2,00,000/-
12. The Tribunal has fastened liability on the Insurance Company. Thus the appellant claims that liability is clamped on the Insurance Company though there existed no valid insurance policy. Regard being had to the fact that, the policy one issued was not duly cancelled by virtue of failure of consideration. In this connection, it is necessary to mention the dates of certain acts which are as under:
the bank to the Insurance company Date of notice of issuance of letter 06-06-2005 Letter sent by courier 27-06-2005 Address to which the notice was sent.
Date of acknowledgement of notice sent through courier Suguna, 801, Yallamma Street Melinapet, Harkote. 28-06-2005 13. In the circumstances, the learned counsel for Insurance Company would submit that dishonour was complete, cheque returned and notice was also complete to the owner-Suguna. It is necessary to make a mention that notice served only through courier on 28.6.2005 and in respect of dishonour of cheque.
14. It is to be seen that the courier receipt contains the signature in English written as ‘Suguna’. Full address is not mentioned on the receipt. Further, the signature on the cheque which was dishonoured is bearing a signature that is totally not a signature of the owner as found in Ex.R8, courier receipt. Thus, signature on the notice relied upon by the Insurance Company and the signature on the courier receipt does not tally in tandom. More particularly, massive discrepancy in the signature should have been explained by the Insurance Company by presenting the application form/proposal form filed at the time of subscribing policy by Suguna could have been a document that could have thrown lights on this issue. The Insurance Company is custodian of the said document. But for the reasons best known to it, the same is not produced. In the circumstances, the learned member in his judgment at page No.24 has observed that there was failure on the part of the respondent No.2 and insurance policy was not duly cancelled.
15. More particularly, the learned counsel for the claimant would submit that all together a different cheque was issued. The learned counsel for Insurance Company would submit in this connection, the cheque could be issued by any person on behalf of owner of the vehicle. The said aspect has to be enclosed with a circumstances or material to show that the person who issued the cheque was giving the amount from his account on behalf of Suguna. Therefore, the said submission on behalf of claimant cannot be accepted. In the overall circumstances, I find that as on the date of the accident, the owner was not in know of the cancellation of policy.
16. Learned counsel for Insurance Company would further submit that it was Suguna who returned the policy of Insurance and the same is marked as cancelled policy as per Ex.R2. Ex.R2 is the cancelled policy as per the affidavit- in- lieu of chief-examination of RW1. However, it is also mentioned in the title as “Certificate of Insurance”. But the submission of appellant’s counsel is ‘certificate of Insurance’ was not returned. However, only policy was returned but no certificate was returned and the same has been communicated in the letter. In Ex.P2, which is titled as cancelled policy bears the name at top as “Certificate of Insurance.” Thus, there is no synchronization among the submissions made and the documents filed by the Insurance Company. In the circumstances, liability fastened on the Insurance Company is just and proper it does not call far any interference.
17. Insofar as the appeal is concerned, it is preferred by the Insurance Company and the claimant has not questioned the same in terms of quantum. Thus, there is no appeal from the claimant for enhancement. Still, the Court is under a duty and obligation to ensure fair and just compensation is granted and the said principle has been fortified by the Hon’ble Supreme Court in the case of Ramla Vs. National Insurance Company Limited (2018 SCC 2616) the relevant para is as under:
6. Though the claimants had claimed a total compensation of Rs.25,00,000/- in their claim petition filed before the Tribunal, we feel that the compensation which the claimants are entitled to is higher than the same as mentioned supra. There is no restriction that the Court cannot award compensation exceeding the claimed amount since the function of the Tribunal or Court under Section 168 of the Motor Vehicles Act 1988 is to award “just compensation”. The Motor Vehicles Act is a beneficial and welfare legislation. A “just compensation” is one which is reasonable on the basis of evidence produced on record. It cannot be said to have become time-barred. Further there is no need for a new cause of action to claim an enhanced amount. The Courts are duty bound to award just compensation. (See the judgments of this Court in the cases of (a) Nagappa v.Gurudayal Singh (b) Magma General Insurance v.Nanu Ram (c) Ibrahim v. Raju.”
18. Insofar as the present case is concerned, the injured claimant is a minor girl aged 8 years as on 19.1.2006 and the principle propounded in AIR 2014 SC 736 (Master Mallikarjun Vs. Divisional Manager, the National Insurance Company Limited and another) 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.”
In the said decision, the compensation payable in respect of the disability above 10% upto 30% to the whole body is Rs.3,00,000/-. In this connection, the injury or disability to a minor cannot be considered at par with a non earning member of the family. The injury to a minor is totally different and it may not be ascertained with reference to earning member and non earning member. The future prospects, capacity, competitive sprit and the related are the aspects where the child is expected to excel with reference to the damage caused. In the circumstances, I find the learned Member though was right in granting compensation, committed error in quantifying the amount at Rs.2,00,000/- which invariably should have been Rs.3,00,000/-. On the basis of back ground of just compensation, I find that claimant is entitled for compensation of Rs.3,00,000/- with interest at 6% p.a. To that extent the impugned judgment and award is modified.
19. In the circumstances and for the forgoing reasons, the appeal filed by the Insurance Company is devoid of merits and accordingly, it is dismissed.
The Insurance Company is directed to pay the compensation amount including the enhanced compensation together with interest at 6% p.a. from the date of petition till its realization apart from the amount already in deposit.
The amount deposited by the Insurance Company shall be transmitted to the jurisdictional Tribunal, forthwith.
Sd/- JUDGE tsn*