IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE R. DEVDAS M.F.A.No.11988/2011 (MV) c/w M.F.A.No.1913/2010 (MV) IN M.F.A.No.11988/2011 BETWEEN:
Sri N Bharath S/o Narayanaswamy, Aged about 20 years, R/at. Shillengere Village, Kolar Tq and District. ... Appellant (By Smt. Suguna R Reddy, Advocate) AND:
1. Sri K Nanjundappa S/o Krishnappa, Major in age R/at Hoohalli Village, Kolar Tq and District.
2. The Branch Manager, New India Assurance Co. ltd, Bengaluru, Mansion, 2nd Floor, Doddapet, Kolar. ... Respondents (By Sri. R Jaiprakash, Advocate for R2 Notice to R1 served - unrepresented) This MFA is filed under Section 173(1) of MV Act against the judgment and award dated 20.11.2009 passed in MVC.No.221/2006 on the file of presiding officer, FTC-I, kolar, partly allowing the claim petition for compensation and seeking enhancement of compensation and etc.
IN M.F.A.No.1913/2010 BETWEEN:
New India Assurance Co. Ltd., Represented by Sr. Divn. Manager 4th Floor Tower Block, Unity Bldg, J.C.Road, Bangalore – 27.
Representing New India Assurance Co., Ltd., Kolar. ... Appellant (By Sri. R Jaiprakash, Advocate) AND:
1. Sri Nanjundappa.K, S/o Krishnappa, Major Hoohalli Village,’ Kolar Taluk & District.
2. Master N Bharath S/o Narayanaswamy, Aged 19 years, Shillengere Village, Kolar Taluk and District. ... Respondents (Guardianship was discharged As per order dated 10/11/2009) (By Sri. J.A. Rafee, Advocate for R1 Smt. Suguna R Reddy, Advocate for R2) This MFA is filed under Section 173(1) of MV Act against the judgment and award dated 20.11.2009 passed in MVC.No.221/2006 on the file of presiding officer, fast track court-I, kolar, awarding a compensation of Rs.1,70,000/- with interest @ 6% P.A. from the date of petition till realization and etc.
These MFAs coming on for Final Hearing this day, the court delivered the following:
JUDGMENT R.DEVDAS J., (ORAL):
The claimant and the Insurance Company are in appeal against the order passed by the Tribunal in MVC.No.221/2006.
2. Learned counsel for the respondent-Insurance Company seeks to justify the award passed by the Tribunal. The Insurance Company contends that the vehicle involved in the accident is Light Goods Vehicle. It is therefore, contended that the driver possessing a driving license to drive ‘Light Goods Vehicle-Non Transport’ is not authorized to drive the Light Goods Vehicle-Transport. It is therefore, contended that the driver had no valid driving license to drive the vehicle in question, since he had no endorsement for driving a transport vehicle.
3. On this aspect of the matter, learned counsel for the appellant submits that the issue is no more res-integra and the same is settled by the decision of the Apex Court in the case of Mukund Dewangan v. Oriental Insurance Company Limited reported in AIR 2017 SC 3668.
4. It has been held in Mukund Dewangan case that in one class of vehicle, there may be different kinds of vehicles. If they fall in the same class of vehicle, no separate endorsement is required to drive such vehicle as Light Motor Vehicle includes Transport Vehicle also and a holder of Light Motor Vehicle license can drive all vehicles of class including Transport vehicles. Therefore, the contention of the Insurance Company cannot be sustained.
5. Learned counsel for the appellant submits that the complainant was studying in 10th standard, when the accident took place on 07/09/2006. The complainant suffered severe crush injury on his right foot. The complainant had to undergo surgery/amputation of the right foot, just above the ankle. The learned counsel further submits that the Tribunal has not awarded any amount towards ‘Loss of marriage prospects’, ‘Future Treatment’ and ‘Loss of expectation of life’ and ‘Loss of future earning capacity’. In this regard, the learned counsel relies upon a judgment of the Hon’ble Supreme Court in the case of V.Mekala v. M. Malathi reported in 2014 AIR SCW 2973.
6. It is seen that in the case of V.Mekala (supra) the victim of the accident and complainant was also studying in 10th standard and the accident took place on 11/04/2005. It has been held by the Apex Court that the victim would have a better future in terms of educational career to acquire basic or master degrees in professional courses and she could have got a suitable, either public or private employment but on account of permanent disability she suffered due to injuries sustained by her in the accident, that opportunity is lost to her and therefore, she is entitled to compensation as per law laid down by the Apex Court in the cases of Raj Kumar, R.D. Hattangadi and Govind Yadav. It has also been held that the undisputed fact of inflation of money in the country should also be taken into account by the Tribunal and Appellate Court while awarding compensation to the claimant, as per the principles laid down by the Apex Court in the case of Govind Yadav, which has reiterated the position in Reshma Kumari v. Madan Mohan’s case, reported in (2009 AIR SCW 6999).
7. The Apex Court has taken a sum of Rs.10,000/- as monthly Notional Income for computation of just and reasonable compensation under the head of ‘Loss of Income’. It was noted by the Apex Court that the High Court has failed to take into consideration the future prospects of income based on the principles laid down by the Apex Court in catena of cases. Therefore, it was held that the claimant is entitled to 50% increase under the head, as laid down in the case of Santosh Devi (AIR 2012 SC 2185).
8. As regards the compensation under the head of ‘pain and suffering and mental agony’, it was held that the High Court, after recording concurrent finding with the award passed by the Tribunal, has not recorded the nature of the permanent disability sustained by the claimant and it was further held that awarding Rs.1,00,000/- under the head of ‘pain and suffering and mental agony’ was too meagre an amount and it is contrary to the judgment in R.D.Hattangadi and Govind Yadav’s case. Therefore, the Apex Court proceeded to enhance the compensation under the head of ‘pain and suffering and mental agony’ to Rs.2,00,000/-. It is beneficial to note that in the case of V.Mekala also, the doctor had opined that at the time of walking the claimant would need support of crutches, while in the present case also the claimant would need support of crutches.
9. It was observed by the Apex Court that the claimant has permanently lost her amenity of both the legs. For the purpose of walking, squatting, running and also studying throughout her life and particularly, at the advanced age, the claimant will be requiring an attendant for giving assistance to attend nature’s call and also at the time of sitting or moving around. Therefore, the Apex Court proceeded to award a sum of Rs.2,00,000/- under the head of ‘Loss of amenity and attendant charges’.
10. Under the head ‘Loss of enjoyment of life and marriage prospects’, the Apex Court has held that the marriage prospects of the claimant has substantially reduced and on account of permanent disability the claimant will be deprived of enjoyment of life. In that view of the matter, under the head ‘Loss of enjoyment of life and marriage prospects’, a sum of Rs.3,00,000/- has been awarded. It is also necessary to notice that a sum of Rs.50,000/- has been awarded towards purchase of crutches periodically.
11. In the light of the above, the judgment and award passed by the Tribunal is modified in the following terms:
1 Pain and suffering and mental agony 2 Loss of amenity and marriage prospects Rs.1,50,000/-
Rs.2,00,000/-
3 Purchase of crutches Rs.50,000/- Loss of future earning capacity 4 (Monthly Notional Income at Rs.7000x50/100=3500x12x15) Medical expenses 5 (Tribunal has awarded Rs.20,000/- and the same shall be retained).
Rs.6,30,000/-
Rs.20,000/-
6 Conveyance, nourishing food and attendant charges Rs.30,000/-
Total Rs.10,80,000/-
7 Total amount awarded by Tribunal Rs.1,70,000/-
Additional compensation 9,10,000/-
12. Taking the monthly notional income of the claimant at Rs.7,000/- the compensation towards ‘Loss of future earning capacity’ is determined at Rs.6,30,000/- by taking the disability at 50%. The enhanced compensation is a sum of Rs.9,10,000/-. The respondent-Insurance Company is directed to deposit the said sum with interest there on at the rate of 6% per annum, within four weeks from the date of receipt of a copy of this judgment and award.
13. On such deposit by the Insurance Company, 50% of the enhanced amount shall be released to the appellant since he has attained majority and he may need the money for setting up business. The rest of the amount shall be invested in fixed deposit in any nationalized or scheduled bank in the name of the claimant, for a period of five years renewable for another five years, with liberty reserved to the claimant to withdraw the interest periodically.
14. Accordingly, the appeal filed by the claimant i.e., M.F.A.No.11988/2011 is partly allowed and the appeal filed by the Insurance company i.e., M.F.A.No.1913/2010 is dismissed.
Office to draw award accordingly.
Ordered accordingly.
SD/- JUDGE SMJ