IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF MARCH 2019 BEFORE THE HON’BLE MR. JUSTICE H. T. NARENDRA PRASAD M.F.A.No.8613 OF 2012(MV) C/W M.F.A.No.641 OF 2012(MV) IN MFA.No.8613/2012:
BETWEEN:
M/s Reliance General Insurance Co. Ltd., No.3, 1st floor, North Wing, Mahanadhi Plaza St.Mark’s Road, Bangalore-560 001.
Now By # 28, East Wing 5th Floor Centenary Building M.G. Road, Bangalore-560 001 Represented by its Zonal Sr. Manager. … Appellant (By Sri.D.S.Sridhar, Advocate) AND:
1. Kum. Abhinaya D/o Sri. M.Loghanathan Aged 10 years Since minor represented by her Natural guardian and father M.Loghanathan, S/o Late Murthi Aged 38 years R/at Nisarga Layout Basavanapura Main Road I Main, 2nd Cross, No.72 K.R.Puram, Bangalore-560 036.
2. M/S BKG Water Suppliers Represented by its Prop K. Shyala Major R/at No.1 Sri.Karilinge Gowda Niwasa I block, 2nd Cross, Akshayanagar D V Nagar Post, Bangalore-560 016 ... Respondents (By Sri.D.Manmohan, Advocate, For R1:
Notice to R2 held sufficient v/o dated:15.12.2016) This MFA is filed under 173(1) of MV Act, against the Judgment and Award. Dated: 04.07.2011 passed In MVC.No.753/2010 on the file of the 14th Addl. Judge, MACT, Court of Small Causes, Bangalore, awarding compensation of Rs.4,20,000/- with interest at 6% p.a. from the date of petition till payment against the respondent Nos.1 and 2 jointly and severally.
IN MFA.No.641/2012 BETWEEN:
Kum. Abhinaya Daughter of M.Loganathan Now aged about 10 years Since minor Rep by her natural guardian & Father M.Loganathan S/o of Late. Murthy Now aged 38 years R/at No.72, 1st Main 2nd Cross, Nisarga Layout Basavanapura Main Road K.R.Puram, Bangalore-560036. … Appellant (By Sri.D.Manmohan, Advocate) AND:
1. M/s Reliance General Insurance Co. Ltd., No.3, 1st floor, North Wing, Mahanandhi Plaza St.Mark’s Road, Bangalore-560 001.
2. M/S BKG Water Supplies Represented by its Prop K. Shyala Major R/at No.1 Sri.Karilinge Gowda Nivas I block, 2nd Cross, Akshayanagar D V Nagar Post, Bangalore-560 016 ... Respondents (By Sri.D.S.Sridhar, Advocate, For R1:
Notice to R2 is dispensed with v/o dated:07.02.2014) This MFA is filed under 173(1) of MV Act, against the Judgment and Award. Dated: 04.07.2011 passed In MVC.No.753/2010 on the file of the 14th Addl. Judge, MACT, Court of Small Causes, member, MACT, Bangalore, partly allowing the claim petition for compensation and seeking enhancement of compensation.
These MFA’s coming on for admission, this day, this Court, delivered the following:
J U D G M E N T M.F.A.No.8613/2012 is filed by the Insurance Company challenging the judgment and award passed by the Motor Accident Claims Tribunal, Court of Small Causes, Bengaluru City (SCCH-10) dated 04.07.2011 in MVC No.753/2010. Claimant has also preferred M.F.A.No.641/2012 against the same judgment and award seeking enhancement of compensation.
Since the challenge is to the same judgment, both the appeals are clubbed, heard together and are being disposed of by this common order.
2. The brief facts of the case are that on 20.12.2009 at about 12.30 p.m. claimant was returning from her tuition at Devasandra Sri Mahaganapathi Temple road near Amarjyothi school cross. At that time, a water tanker bearing No.KA- 53/8044 came from Ganesh Temple road driven by its driver in a rash and negligent manner, hit against the claimant and due to the impact she fell down and sustained injuries all over the body. Immediately she was shifted to Manipal poly clinic at Devasandra. After first aid treatment she was shifted to NIMHANS and thereafter to Manipal Hospital. She was inpatient for about 21 days. Immediately after recovering from the injuries, claimant has filed a claim petition before the MACT, Bangalore in MVC No.753/2010.
3. To establish her case, father of the claimant was examined as PW1 and Dr.P.N.Prakah was examined as PW2 and got marked 13 documents. On the other hand, on behalf of the Insurance Company an officer of the Company was examined as RW1 and got marked 5 documents. On appreciation of the oral and documentary evidence, the Tribunal has granted a compensation of Rs.4,20,000/- with interest at 6% p.a. Being aggrieved by the fastening of liability, Insurance Company has preferred MFA No.8613/2012 and being not satisfied with the quantum of compensation claimant has filed MFA No.641/2012.
4. Sri D.S.Sridhar, learned counsel for the Insurance Company submits that the accident occurred on 20.12.2009. The driver of the offending vehicle has obtained policy for the period from 06.02.2009 to 05.02.2010. To that effect, he has issued a cheque on 10.02.2009 related to HDFC Bank, which was presented to the Bank was dishonoured for insufficient funds and the same has been intimated to the insured on 20.06.2009. therefore, there is no policy as on the date of the accident. Hence, the Insurance Company is not liable to pay the compensation. But the Tribunal has erred in fastening liability on the Insurance Company. Hence, he sought for allowing the appeal filed by the Insurance Company.
5. Per contra, Sri D.Manmohan, learned counsel appearing for the claimant submits that insurance policy was existing from 06.02.2009 to 05.02.2010. The intimation letter which was sent by the Insurance Company dated 20.06.2009 has not been received by the insurer. There is no intimation of cancellation of the policy. As on the date of the accident the policy was in existence. Therefore, the Tribunal is right in fastening liability on the Insurance Company.
6. He further contended that as per the law laid down by the Hon’ble Supreme Court in the case of MALLIKARJUN vs. DIVISONAL MANGER, NATIONAL INSURANCE CO. LTD.
AND ANOTHER reported in 2013 ACJ 2445, the compensation granted by the Tribunal is on the lower side. Hence, he sought for dismissal of the appeal filed by the Insurance Company and seeks for enhancement of compensation.
7. Heard learned counsel for the parties and perused the records.
8. It is not in dispute that due to the accident involving water tanker bearing No.KA-53-8044 the claimant has sustained the following injuries:
(i) Head injury with left temporal thin EDH.
(ii) Left petrous fracture (iii) Multiple cranial vault and orbital wall fracture.
(iv) Post traumatic right 3rd and left 7th nerve palsy.
(v) fracture of both bones of right leg and other injuries.
Dr.P.N.Prakash who was examined as PW2 has deposed that there is 30% permanent physical disability and the claimant has produced Ex.P8 – 91 medical bills and voucher for Rs.1,51,512/- and claimant was inpatient for a period of 21 days and undergone surgery. The Hon’ble Supreme Court in the case of MALLIKARJUN (supra) has held as under:
“12. 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, we are of the view that the appropriate compensation on all other heads in addition to the actual expenditure towards treatment, attendant etc. should be, if the disability is above 10 per cent and up to 30 per cent to the whole body, Rs.3,00,000, up to 60 per cent, Rs.4,00,000/-, up to 90% Rs.5,00,000/- and above 90 per cent, it should be Rs.6,00,000./-. For permanent disability up to 10 percent, it should be Rs.1,00,000, unless there are exceptional circumstance to take a different yardstick.”
9. In view of the above, since the claimant was aged about 8 years at the time of accident and he has suffered 30% disability to the whole body, claimant is entitled for compensation of Rs.3,00,000/- in addition to the compensation granted under the head ‘medical expenses, conveyance and attendant charges’. The Tribunal has granted a sum of Rs.1,60,000/- towards medical expenses, conveyance and attendant charges. Having regard to the nature of injuries suffered by the claimant, she is entitled for Rs.2,00,000/- under the head ‘medical expenses, conveyance and attendant charges’. Accordingly, the amount awarded by the Tribunal at Rs.4,20,000/- is enhanced to Rs.5,00,000/- with 6% interest per annum from the date of petition till the date of payment.
10. In respect of the contention of the Insurance Company that Insurance Company is not liable to pay the compensation and the Tribunal has wrongly fastened the liability on the Insurance company, the Tribunal has considered the contention of the claimant and has specifically held that the Insurance Company has not intimated the insured regarding the cancellation of the policy and since as on the date of the accident the policy was in existence unless cancellation of the policy has been intimated to the insured they cannot shred their liability. The Tribunal also considered the judgment relied on by the Insurance Company in ILR 2009 Kar.2776 and held that the same is not applicable to the case on hand since there is no intimation of the cancellation of the policy. In view of the above, in my opinion there is no error in the finding of the Tribunal that the Insurance Company is liable to pay compensation.
11. Accordingly, appeal filed by the Insurance Company in MFA No.8613/2012 is dismissed. The appeal filed by the claimant in MFA No.641/2012 is allowed in part. The compensation granted by the Tribunal is modified enhancing the compensation from Rs.4,20,000/- to Rs.5,00,000/-.
12. The Insurance Company is directed to deposit the enhanced compensation amount along with interest @ 6% per annum from the date of filing of the claim petition, till the date of realization, within a period of six weeks from the date of receipt of a copy of this judgment. The amount so deposited by the Insurance Company shall be disbursed as per the award.
The amount in deposit before this Court shall be transmitted to the Tribunal, forthwith.
Sd/- JUDGE Cm/-