Partly allowed

Sri S. Rajamani v. Sri Thimmegowda

Karnataka HC19 Nov 2020MFA/8401/2013

Case brief

AI extract

What is this about?

The High Court allowed an appeal modifying the compensation awarded by the Motor Accidents Claims Tribunal. The court clarified insurer liability regarding license validity and enhanced compensation based on corrected disability and income assessments.

What did the court decide?

Total compensation enhanced to Rs.18,89,750/- with interest at 6% per annum; liability fixed on Respondent No.2.

Sri S. Rajamani Vs Sri Thimmegowda — Motor Accident Claims | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 19^TH DAY OF NOVEMBER, 2020

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PRESENT

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THE HON’BLE MRS.JUSTICE S.SUJATHA

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AND

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THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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M.F.A.No.8401/2013 (MV)

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BETWEEN :

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SRI S.RAJAMANI S/O LATE S.SUNDARAM AGED ABOUT 41 YEARS R/AT VICTORIA ROAD, NO.31 LOYALA LAYOUT, BANGALORE-47 ...APPELLANT

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(BY SRI P.V.KALPANA, ADV.)

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AND :

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1 . SRI THIMMEGOWDA S/O RAMEGOWDA GULLADAPURA (V) SANKANAHALLI (P) HN PURA (TN) HASSAN DISTRICT-573201

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2 . THE MANAGER RELIANCE GENERAL INS. CO. LTD., 5^TH FLOOR, CENTENARY BUILDING M.G.ROAD, BANGALORE-01 …RESPONDENTS

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(BY SRI D.VIJAYAKUMAR, ADV. FOR R-2;

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VIDE COURT ORDER DATED 06.01.2016 NOTICE TO R-1 IS HELD SUFFICIENT.)

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THIS M.F.A. IS FILED UNDER SECTION 173(1) OF M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED 12.06.2013 PASSED IN MVC No.5085/2010 ON THE FILE OF THE VIII ADDITIONAL SMALL CAUSE JUDGE & XXXIII ACMM, MEMBER, MACT, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS APPEAL COMING ON FOR HEARING, THIS DAY, S. SUJATHA, J ., DELIVERED THE FOLLOWING:

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J U D G M E N T

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This appeal is directed against the judgment and award dated 12.06.2013 passed in MVC No.5085/2010 by the VIII Additional Small Causes Judge and Motor Accidents Claims Tribunal, Bengaluru (‘Tribunal’ for short).

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The claimant filed petition under Section 166

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of the Motor Vehicles Act, 1988 (‘Act’ for short) seeking compensation for the injuries sustained in the road traffic accident that occurred on 12.06.2009.

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The averments in the claim petition are that on 12.06.2009 at about 10.50 p.m., on Aseya road, Bengaluru, while the claimant - injured was traveling as

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an occupant of the Tata Indica Cab bearing registration No.KA-13-A-4470 (offending vehicle), met with the road traffic accident owing to the actionable negligence of the driver of the said vehicle. As a result, the claimant sustained severe injuries. He was shifted to Lakeside Hospital, where first aid was given; thereafter he was shifted to Mallya Hospital for treatment, where he has taken treatment as an inpatient till 05.07.2009. He was diagnosed for the fracture of C3 and C4 Vertebra SubLusation with Cord Contusion and cervical spine injury. He was subjected to surgery of spine, wherein implants are fitted at the fracture site and hard cervical collar was applied. Due to cervical spine fracture, all four limbs are paralyzed. He was discharged from Mallya Hospital with an advice for physiotherapy, use Foleys Catheter, hard cervical collar and necessary medication. The clamant again got admitted to Christian Medical College for further rehabilitation on 03.12.2009 and he

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was discharged on 12.02.2010. He has incurred huge

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expenses towards the medical treatment.

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It was further contended that the claimant

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was working as an Executive Help Desk at Jones Lang

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Lasalle Meghraj and drawing salary of Rs.10,001/- per month. He was aged about 38 years and had a bright future. In view of the disabilities sustained in the accident in question, he is not able to resume work and he has been terminated from service on 31.01.2010. It was stated that he has sustained 100% permanent disability; he has to depend on others for his daily needs; nurse was appointed by paying Rs.10,000/- per month and he has taken physiotherapy everyday by paying Rs.400/- per day. His family is depending on him. Due to the impact of the accidental injuries, his family is also totally put to hardship. He is not able to sign, as such he has put his left thumb impression. On

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these set of facts and grounds, compensation was

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sought.

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In response to the notice issued by the Tribunal, the owner remained absent and was placed ex-parte . The insurer appeared and contested the claim by filing written statement denying the petition averments. The defence set up was that the driver of the offending vehicle did not possess valid and effective diving licence and thereby violated the terms and conditions of the policy.

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On the basis of the pleadings, issues were framed by the Tribunal and answered as per the reasons recorded in the impugned judgment awarding total compensation of Rs.14,46,500/- with interest at the rate of 8% per annum from the date of the petition till realization. Being not satisfied with the quantum of compensation awarded by the Tribunal, the claimant is in appeal seeking enhancement of compensation.

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It is the case of the claimant that the gravity

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of injuries sustained by him is severe. Spinal cord injuries has adversely effected the life pattern of the claimant making him to suffer for the entire life. Though the Doctor - PW1 has assessed the permanent disability to the whole body at 75% and functional disability at 100%, the Tribunal erred in taking the disability at 50% and income at Rs.9,850/- per month to compute the loss of future income. The claimant was drawing a monthly salary of Rs.10,001/-. The compensation awarded under the different heads is meager. Accordingly, the claimant seeks for enhancement of compensation.

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It was further contended that the Tribunal erred in saddling the liability on the respondent No.1 – owner of the offending vehicle for the reason that the driver of the offending vehicle had no valid and effective driving licence as the same was expired as on the date

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of the accident. It was observed that neither the claimant nor the owner of the offending vehicle had produced any document to show that the driver of the offending vehicle possess valid and effective driving licnece at the time of the accident. In this regard, the appellant/claimant has filed a memo along with the copy of the driving licence held by the driver of the offending vehicle to drive Light Motor Vehicle (LMV), non-transport vehicle. Placing reliance on the judgment of the Hon’ble Apex Court in the case of Mukund Dewangan V/s. Oriental Insurance Company Limited reported in [2017] 14 SCC 663 , it was contended that no further endorsement is required to drive the transport vehicle in view of the driving licence held for driving LMV car.

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The Tribunal has exonerated the insurer

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from liability to indemnify the owner for the reasons that the driver of the offending vehicle did not possess

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the valid and effective driving licence as on the date of the accident to drive the transport vehicle, the same being resulted in breach of terms and conditions of the policy. Neither the claimant nor the owner have produced any document to hold that the driver of the offending vehicle possessed valid and effective driving licence at the time of the accident.

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The copy of the driving licence now placed before this Court would indicate that the driver of the offending vehicle possessed the licence to drive the nontransport vehicle from 09.01.2006 to 08.01.2026 and transport vehicle from 11.10.2018 to 10.10.2021. The accident in question occurred on 12.06.2009. In view of the copy of the driving licence extract dated 07.11.2020 issued by the Regional Transport Office (RTO), Hassan now placed on record, it can be held that the driver of the offending vehicle had the licence to drive LMV-nontransport, as on the date of the accident. No doubt, the

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driver did not possess the driving licence to drive the transport vehicle as on the date of the accident, in view of the driving licence possessed by him to drive the LMV as on the date of the accident, in terms of the judgment

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of the Hon’ble Apex Court in Mukund Dewangan

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supra no endorsement is required to drive the transport vehicle. Hence, the liability is fixed on the insurer to satisfy the award.

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The injuries sustained by the claimant as

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per the wound certificate at Ex.P10 are as under:-

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1. Scalp-lacerated wound over vertex 10 x 2 cm

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2. Cervical spine tenderness in loss of sensation, loss of both lower limbs below C5

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3. X-ray cervical spine CR.9429/9398 chip fracture anterior supunur margin of C4 verbebra

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4. CT cervical spine CT-III compression fracture of C4 vertebra, anterior fracture dislocation C3 codylevel

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5. MRI Cervical spine – MR-630-compression of fracture of C4 vertebra, body of deso pretrmisuns C5-C6, C6-C7 heads marrewoedema-noted C4, C5, C6, C7 vertebra buleas.

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Dr. Anantha Kishan, Neuro Surgeon in

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Mallya Hospital, Bengaluru, who was examined as PW1 has deposed that the claimant underwent surgery for C3 and C4 on 16.06.2009 (wrongly typed as 15.06.2009) and was treated in the ICU for long period and he was also put on hard cervical collar. He has stated that he has examined the claimant on

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01.10.2011 and found the following impairments:-

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1. Patient still has significant residual sequelae of his cervical spine injury.

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2. Patient has quadriparesis and is confined to his be and wheelchair.

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3. He is unable to use his upper limbs also and needs intermittent catheterization for evacuation of his bladder.

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4. He is on medication and physiotherapy.

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He has an overall disability of about 75% at present.

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The medical records would disclose that the

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four limbs of the claimant has been paralyzed on account of injuries sustained in the accident. The claimant has multiple fracture of cervical. Since all these injuries pertain to spine and the claimant has to depend on the wheelchair for the rest of his life, we deem it appropriate to assess the loss of earning capacity to an extent of 75% to assess the loss of future income.

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The Tribunal has assessed the disability at 50% though the doctor has assessed the physical disability at 75% and the functional disability at 100%. Considering the grievous nature of the injuries sustained by the claimant and the assessment made by the doctor - PW1, which remain unrebutted, we reassess the functional disability of the claimant at

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75%. Confirming the income of the claimant at

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Rs.9,850/- per month, applying the multiplier of ‘15’ since the claimant was aged about 38 years at the time of the accident with disability of the 75%, the total loss of future income would work out to Rs.13,29,750/(9850 x 12 x 15 x 75%). In all other respects, the compensation awarded by the Tribunal remains undisturbed.

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For the reasons aforesaid, the total

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compensation awarded by the Tribunal is reassessed as under:

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Sl.No.	Particulars	Amount [in Rs.]
1.	Loss of futureincome	13,29,750/-
2.	Pain andagony	1,00,000/-
3.	Medical Expenses	1,00,000/-
4.	Nourishment and attendant charges etc.,	1,60,000/-
5.	Loss ofamenities	1,00,000/-
6.	Futuremedicalexpenses	1,00,000/-
	Total	18,89,750/-

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Thus, the claimant shall be entitled to total compensation of Rs.18,89,750/- with interest at the

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rate of 6% per annum from the date of the claim petition

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till the date of realization.

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Hence, the following

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ORDER

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i] Appeal filed by the claimant is allowed in part.

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ii] The total compensation awarded by the Tribunal is modified and enhanced to Rs.18,89,750/as against Rs.14,46,500/- with interest at the rate of 6% per annum from the date of the petition till its realization.

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iii] The liability is fastened on the insurerrespondent No.2 to satisfy the total compensation awarded as aforesaid.

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iv] The insurance company shall deposit the re-assessed total compensation determined as aforesaid before the Tribunal within 90 days from the date of receipt of the certified copy of the judgment and order.

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v] The portion of the order of the Tribunal inasmuch as disbursement remains intact.

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vi] The modified compensation shall be disbursed in terms of the order of the Tribunal.

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vii] Draw modified award accordingly.

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viii] The Registry shall transfer the original records to the jurisdictional Tribunal forthwith.

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ix) All pending I.As. stand disposed of.

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Sd/JUDGE

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Sd/JUDGE

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PMR

Sri S. Rajamani v. Sri Thimmegowda

Case brief

What is this about?

What did the court decide?

Sri S. Rajamani v. Sri Thimmegowda

Case brief

What is this about?

What did the court decide?

What the court decided

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