IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE H.P. SANDESH M.F.A.No.1305/2012 (MV) BETWEEN:
KUMARI DEVAKI, D/O APPANNA, AGED ABOUT 17 YEARS, SINCE MINOR REPRESENTED BY HER NATURAL GUARDIAN FATHER APPANNA, AGED ABOUT 45 YEARS, S/O PUTTAPPA, BANKAVADI VILLAGE KANDALIKE HOBLI, H.D. KOTE TALUK, MYSORE DISTRICT. … APPELLANT (BY SRI VEERESH M., ADVOCATE) AND:
1. MOHAMMED MUSTHAFA KHAN, SON OF JAMAL KHAN, AGED ABOUT 24 YEARS, NO.33/11, NEAR GANAPATHI TEMPLE, KENGAL HANUMANTHAIAH NAGAR, MADDUR TOWN, MANDYA DISTRICT, 2. K.H. SRINIVAS, SON OF K. HONNEGOWDA, AGED ABOUT 32 YEARS, NO.128, 2ND CROSS, 2ND MAIN, LEELAVATHI LAYOUT, MADDUR TOWN, MANDYA DISTRICT.
3. RELIANCE GENERAL INSURANCE COMPANY, (ANIL DHEEROBAI AMBANI GROUPS), IN FRONT OF SUBURB BUS STAND, B.N. ROAD, MYSURU. ... RESPONDENTS (BY SRI D.S. SRIDHAR, ADVOCATE FOR R-3, R-1 AND R-2 SERVED) THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 09.09.2011 PASSED IN MVC.NO.204/2011 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT-I, MEMBER ADDITIONAL MACT, MYSURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS M.F.A. COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This appeal is filed against the judgment and award dated 9.9.2011 passed in M.V.C.No.204/2011, on the file of the Fast Track Court – I and Additional Motor Accident Claims Tribunal at Mysuru, seeking enhancement of compensation for the injuries sustained by the injured – claimant.
2. The factual matrix of the case is that the claimant sustained injuries in a road accident which occurred on 17.9.2010 at about 1.15 p.m. near Nagamma Hospital, Theo Bald Road, Mysuru. As a result, she sustained fracture of lower 3rd of right tibia and fibula and she was hospitalized for a period of three days.
3. The grounds urged in the appeal is that the Court below has committed an error in not considering the evidence of the doctor – P.W.3, who assessed the disability of 13% to the right lower limb. The appellant relying upon Ex.P.12 would submit that the Court below failed to consider that the claimant was participating in the sports activities. The Court below has taken only 4% disability. The Court below has also not awarded just and reasonable compensation under the other heads.
4. Per contra, the learned counsel for the respondent No.3 would contend that the Court below has awarded compensation under all the heads considering the nature of injuries sustained by the claimant and has rightly taken 1/3rd of permanent disability and there are no grounds to interfere with the order of the Trial Court.
5. Having heard the arguments of the learned counsel for the appellant and the learned counsel for the respondent No.3, the points that arise for my consideration are:
(i) Whether the Court below has committed an error in not awarding just and reasonable compensation?
(ii) Whether the Court below has committed an error in fixing the liability on the owner instead of Insurance Company?
(iii) What order?
Points (i) to (iii):
6. On perusal of both oral and documentary evidence placed before the Court, it is evident that the claimant relied upon the wound certificate, which is marked as Ex.P.6 and also produced the discharge card, which is marked as Ex.P.7. The claimant was an inpatient for a period of three days. The claimant has also examined the doctor – P.W.3. The Court below, considering the nature of injuries, awarded the total compensation of Rs.54,000/-. On perusal of the wound certificate, it is clear that she had sustained fracture of lower 3rd of right tibia and fibula. Having considered that the accident is of the year 2010, that the claimant is aged about 16 years as on the date of the accident, the Court below rightly awarded Rs.35,000/- under the head pain and sufferings.
7. Considering the disability on the part of the claimant, no compensation was awarded. The doctor, who has been examined as P.W.3 assessed the disability of 13% to the right lower limb. When such being the case, the Court below ought to have considered and awarded the compensation, but only awarded an amount of Rs.2,500/- towards discomfort and loss of amenities to life. The same is also very meager. Considering the age of the claimant and also the disability suffered at the age of 16, which would remain throughout her life, it is appropriate to award the compensation under the head of discomfort and loss of amenities of life for an amount of Rs.30,000/-.
8. Under the head conveyance and attendant charges and nourishing food, the Trial Court awarded only Rs.3,000/- and the same is meager and it requires to be enhanced to Rs.10,000/-. The Court below awarded an amount of Rs.10,500/- towards medical expenses and there are no grounds to enhance the same. Regarding loss of sports activities, an amount of Rs.3,000/- is awarded and the claimant has relied upon Ex.P.12 to show that she was involved in sports activities. Having considered the same, it is appropriate to enhance the same from Rs.3,000/- to Rs.10,000/-.
9. On perusal of the judgment of the lower Court, it is evident that the Court below fastened the liability on the owner on the ground that the driver was not having driving licence as on the date of the accident. In recent judgment of the Apex Court in the case of SHIVRAJ v. RAJENDRA AND ANOTHER reported in 2019 SAR (Civil) 33 and also in the case of PAPPU AND OTHERS v. VINOD KUMAR LAMBA AND ANOTHER reported in (2018) 3 SCC 208, the Apex Court has made it clear that the Insurance Company has to pay the compensation amount and recover the same from the insured. Hence, the liability has to be fastened on the Insurance Company.
10. In view of the discussions made above, I pass the following:
ORDER (i) The appeal is allowed partly.
(ii) The judgment and award dated 9.9.2011 passed in M.V.C.No.204/2011, on the file of the Fast Track Court – I and Additional Motor Accident Claims Tribunal at Mysuru, is modified granting compensation of Rs.95,500/- with interest at 6% per annum as against Rs.54,000/-.
(iii) The liability is fastened on the respondent No.3 - Insurance Company with permission to recover the same from the insured.
Sd/- JUDGE MD