IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT M.F.A. NO.4578 OF 2015 (MV) BETWEEN:
THUSHAR S/O BHASKAR, AGED ABOUT 11 YEARS, MINOR R/P BY NATURAL GUARDIAN- MOTHER-YASHODA W/O BHASKAR, AGED ABOUT 31 YEARS, R/O 6TH CROSS, ADARSHA NAGAR, HASSAN, NOW R/O POST OFFICE ROAD, SRIRANGAPATNA TQ – 571 438.
(BY SRI. M.Y.SREENIVASAN, ADVOCATE) AND:
1. PUSHPALATHA D W/O UMESHA, GOVERNMENT HIGH SCHOOL, KALLAHALLY, MANDYA – 571 401.
2. THE BRANCH MANAGER THE NEW INDIA ASSURANCE CO. LTD., ... APPELLANT NO.1200, 2ND CROSS, ASHOKA NAGARA, MANDYA, NOW SHIFTED TO J L B ROAD, CHAMUNDIPURAM, MYSORE – 570 017.
... RESPONDENTS (BY SRI C SHANKAR REDDY, ADVOCATE FOR R2; R1 SERVED) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 04.03.2015 PASSED IN MVC NO.11/2012 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, MACT, SRIRANGAPATTANA, PARTLY ALLOWING THE CLAIM PETITION FOR COMENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The claimant is in appeal under Section 173(1) of the Motor Vehicles Act, aggrieved by saddling of liability on respondent No.1-owner and praying for enhancement of compensation, not being satisfied with the quantum of compensation awarded under the judgment and award dated 04/03/2015 in M.V.C.No.11/2012 on the file of the Principal Senior Civil Judge and MACT, Srirangapattana.
2. The claimant is a minor aged about 8 years, filed claim petition under Section 166 of the Motor Vehicles Act, claiming compensation for the accidental injuries suffered in a road traffic accident. It is stated that on 26-5-2010, when the claimant-minor was proceeding in Honda Activa Scooter bearing No.KA-11-V-3474 as a pillion rider along with his mother Yashodha and sister Keerthana from Mysore to Mandya, which was ridden by his father Bhaskar, he drove the Scooter in a very rash and negligent manner. While avoiding a street dog on the road, he took the Scooter to the right side of the road and dashed to the road median. Due to which, the claimant fell down and sustained grievous injuries. It is stated that the claimant suffered grievous injuries on his right hand with swelling and tenderness over right humurus with fracture of humerous bone, deep lacerated injury over the right elbow and grievous abrasion injury over the right forearm and other injuries. It is further stated that the minor child was inpatient for 4 days at Vikram Hospital, Mandya.
3. On issuance of notice, respondent No.2/Insurer appeared before the Tribunal and filed its statement of objections admitting the issuance of policy in respect of Scooter and contended that the accident had occurred solely due to the rash and negligent driving of the rider of the Scooter. It is also contended that the rider was not holding a valid and effective driving licence as on the date of accident.
4. The mother of the minor claimant examined herself as PW-1, apart from marking documents Exs.P-1 to P-6. No evidence was lead on the behalf of the respondents.
5. The Tribunal on appreciating the material on record, awarded total compensation of Rs.35,000/- with interest at the rate of 6% per annum from the date of petition till its realization and saddled the liability on respondent No.1- owner of the Scooter on the ground that legible copy of the driving license is not produced. Hence, the claimant is before this Court in this appeal.
6. Heard the learned counsel for the appellant and learned counsel for the respondent-Insurer. Perused the material on record.
7. Learned counsel for the appellant submits that the minor claimant has suffered grievous injuries in the accident and the rider of the Scooter was holding a valid and effective driving license as on the date of accident. He further submits that the Tribunal committed an error in saddling the liability on respondent No.1-owner and the compensation awarded is also on the lower side. Thus, prays for enhancement of compensation and to saddle the liability on respondent No.2-insurer.
8. Per contra, learned counsel for the respondent- insurer submits that the Tribunal rightly saddled the liability on respondent No.1-owner as the rider of the Scooter was not holding a valid and effective driving license as on the date of accident. He further submits that the compensation awarded by the Tribunal is just compensation which requires no interference. Thus, prays for dismissal of the appeal.
9. On hearing the learned counsels for the parties and on perusal of the material on record, the following points would arise for consideration in the facts and circumstances of the case.
1) Whether the Tribunal is justified in saddling the liability on respondent No.1-owner instead of respondent No.2-insurer?
2) Whether the claimant would be entitled for enhanced compensation?
Answer to the above points are in the negative and affirmative respectively for the following reasons.
10. The accident occurred on 26-5-2010 involving Honda Activa Scooter bearing No.KA-11-V-3474 and the accidental injuries suffered by the minor claimant are not in dispute in this appeal. The claimant is in appeal, aggrieved by saddling of liability on respondent No.1- owner and praying for enhancement of compensation.
11. The Tribunal committed an error in saddling the liability on respondent No.1-owner on the ground that PW-1 has not produced the legible driving license to show rider was having valid driving license as on the date of accident to ride the Scooter. During the hearing of the appeal, the learned counsel for the appellant made available the original copy of the driving license issued to respondent No.1, which would indicate that the license was valid till 26-9-2019 to ride the two wheeler. Learned counsel for the respondent-insurer has also verified the original driving license and submits that the license was valid till 26-9-2019. The accident had taken place on 25-6-2010, on the said day, the respondent No.1 had valid driving license to ride two wheeler. Therefore, the liability fastened on respondent No.1-owner is shifted to respondent No.2-insurer as the rider of the vehicle was holding a valid driving licence as on the date of accident. The insurer-respondent No.2 is liable to indemnify the compensation awarded.
12. Admittedly, the minor claimant was aged about 8 years as on the date of accident. The claimant has suffered injuries as stated above and he was inpatient for 4 days at Vikram Hospital. Ex.P5-wound certificate is placed on record, which would indicate the injuries sustained by the claimant. As the claimant is minor and for the injuries sustained by him, he would have undergone pain and suffering and parents would have incurred expenses for his treatment. Thus, I am of the view that the claimant would be entitled for another sum of Rs.15,000/- in addition to Rs.35,000/- awarded by the Tribunal.
13. Thus, the claimant would be entitled for a sum of Rs.50,000/- as global compensation as against Rs.35,000/- with interest at the rate of 6% per annum from the date of petition till its realization as awarded by the Tribunal.
The judgment and award passed by the Tribunal is modified to the above extent. Accordingly, the appeal is allowed in part.
Sd/- JUDGE SMJ