Allowed

Sri Saleem Ahammed v. the National Insurance Co.Ltd.

Karnataka HC16 Dec 2022MFA/1914/2017

Case brief

AI extract

What is this about?

In an Motor Accident Claim appeal by the insured owner, the court relied on Mukund Dewangan to shift liability to the insurer for a Light Motor Vehicle. Invoking Order 41 Rule 33 CPC, the court enhanced compensation for the minor victim from Rs.7.24 lakh to Rs.27.97 lakh by including units for artificial limbs and lifetime maintenance, directing the insurer to pay.

What did the court decide?

Impugned award modified; liability shifted to insurer; compensation enhanced to Rs.27,97,496/- inclusive of four artificial limbs and maintenance; interest directed.

Sri Saleem Ahammed Vs the National Insurance Co.Ltd. — Motor Accident Claims | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU R

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DATED THIS THE 16^TH DAY OF DECEMBER, 2022

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BEFORE

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THE HON'BLE MR. JUSTICE H.P. SANDESH

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M.F.A.NO.1914/2017 (MV-I)

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BETWEEN

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SRI SALEEM AHAMMED S/O MUNEER AHAMMED AGED ABOUT 38 YEARS R/O NO.55, 1^ST BLOCK DEVANAYAKANAHALLI HONNALI TALUK-577217 DAVANAGERE DISTRICT

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SRI MOHAMMED JALEEL S/O MOHAMMED HAYATH SAB AGED ABOUT 51 YEARS R/O STAR SERVICE CENTRE T B CIRCLE, OPP: BEO OFFICE HONNALI TOWN-577217 DAVANAGERE DISTRICT

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...APPELLANTS

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(BY SRI V B SIDDARAMAIAH, ADVOCATE)

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AND

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THE NATIONAL INSURANCE CO. LTD. 2^ND FLOOR, DENTAL COLLEGE ROAD

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DAVANAGERE-577101 REP. BY ITS DIVISIONAL MANAGER

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KUM SUPRIYA D/O BASAVANAGOUDA AGED ABOUT 10 YEARS MINOR REP. BY HER NATURAL GUARDIAN MOTHER SMT. JAYASHREE N.R. W/O BASAVANAGOUDA AGED ABOUT 33 YEARS R/O KOMARANAHALLI HARIHAR TOWN-577 601 DAVANAGERE DISTRICT

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... RESPONDENTS

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(BY S SRISHAILA, ADVOCATE FOR R1; SHRUTHI, ADVOCATE FOR VINAYA KEERTHY, ADVOCATE FOR R2)

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THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT

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AGAINST THE JUDGMENT AND AWARD DATED 12.01.2017 PASSED IN MVC NO.65/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE AND ADDITIONAL MACT, HARIHAR AND ETC.

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THIS M.F.A. COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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This appeal is filed by the owner challenging the judgment and award dated 12.01.2017 passed in MVC No.65/2014 on the file of the Senior Civil Judge and Additional MACT, Harihar (‘the Tribunal’ for short).

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Heard the learned counsel appearing for the respective parties.

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The factual matrix of the case is that the injured who was aged about seven years met with an accident as a result, her left leg was amputated below the knee and hence, she made the claim before the Tribunal and Tribunal after considering both the oral and documentary evidence available on record, allowed the claim petition in part granting compensation of Rs.7,24,315/- with 6% interest and the liability is fastened on the insured on the ground that the driver of the offending vehicle was not having valid and effective driving licence hence, the present appeal is filed by the owner challenging the judgment and award with regard to the liability fastened on the insured.

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The main contention of the appellants/respondent Nos.1 and 2 that the Tribunal has committed an error in fastening the liability on the insured and the driver was having driving licence to drive the non-transport vehicle and the same is also valid up to 07.11.2029 and in view of the judgment of the Apex Court in the case of MUKUND DEWANGAN vs ORIENTAL INSURANCE COMPANY LIMITED reported in (2017) 14 SCC 663, the Apex Court held that if the unladen weight of the vehicle is less than 7,500, no need of transport endorsement if vehicle is LMV and hence, liability has to be fastened on the Insurance Company instead of insured.

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The learned counsel appearing for respondent

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No.2/claimant vehemently contend that the Tribunal has committed an error in awarding meager compensation and it is an injustice to the victim girl who was aged about 7 years at the time of the accident and she lost her left leg and her leg was amputated. The counsel relied upon the judgment of the Apex Court passed in Civil Appeal No.5069/2022 dated 03.08.2022 wherein a similar sets of facts are urged alleging that the injured was aged about six years met with an accident and awarded

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compensation of Rs.53,07,000/- on different heads relying upon

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the judgments of the Apex Court in the cases of KAJAL vs JAGDISH CHAND AND OTHERS and MASTER AUYSH vs BRANCH MANAGER, RELIANCE GENERAL INSURANCE CO.

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LTD. Hence, prayed this Court to invoke Order 41 Rule 33 of CPC and award just and reasonable compensation.

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The learned counsel appearing for the Insurance

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Company would submit that the factual aspects of the case referred by the counsel the claimant is different wherein the Apex Court has observed that the other leg may not be able to support the appellant when she grows and also the appellant will not be able to use any artificial limbs and would always have to

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depend for her daily course and as she grows thus, awarded higher compensation but the case on hand is not a similar case as referred by the learned counsel for the claimant and an amputation is below the knee and photographs also clearly discloses that she can use artificial limb and need not necessarily depend always on the others as observed by the Apex Court hence, the said judgment is not applicable to the case on hand.

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Having heard the respective counsel and also on

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perusal of the material available on record, the point that would arise for consideration of this Court are:

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(1) Whether the Tribunal has committed an error in fastening the liability on the insured instead of insurer?

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(2) Whether it is a fit case to exercise the discretion under Order 41 Rule 33 of CPC?

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(3) What order?

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Point No.1

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The case of the claimant that she was walking on the

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left side of the road, at that time, the driver of the car drove the same in a rash and negligent manner and dashed against her as a result, she sustained injuries. With regard to the liability is concerned, the Tribunal while considering the material on record including the judgment of the Apex Court in Mukund Dewangan’s case, in paragraph 32 discussed the same and also in paragraph 33 comes to the conclusion that unladen weight of the said vehicle is 1140 kgs and in the discussion it is held that licence indicates that as on the date of the accident the

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respondent No.1 has possessed licence to drive light motor vehicle and it further indicates that he has not possessed valid and effective driving licence to drive the offending vehicle as provided under Central Motor Vehicle Rules as amended on 28.03.2001 and further observed that the accident involved in the case on hand has occurred subsequent to 2001 and Ex.R3 the driving licence to drive the light motor vehicle has issued to the respondent No.1 subsequent to the said amendment. Therefore, the petitioner cannot relied upon Ex.R3 to say that it is a valid and effective driving licence and hence, the liability is fastened on the insured.

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The learned counsel appearing for the

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appellant/insured would vehemently contend that when the Apex Court delivered the judgment in the year 2016 in Mukund Dewangan’s case, in detail discussed with regard to the driving licence and also meaning of definition of LMV as defined under Section 2(21) and what is the effect of the amendment and also whether transport vehicles are excluded from it and comes to the conclusion that if unladen weight of the vehicle is 7,500,

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transport endorsement is not necessary hence, the discussion made by the Tribunal is erroneous.

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Having heard the respective counsel and also on perusal of the material available on record no doubt, the matter is referred to the Larger Bench but as on the date, the principles laid down in the judgment of the Apex Court in Mukund Dewangan’s case is very clear that if the vehicle involved in the accident is LMV and unladen weight is less than 7,500, transport endorsement is not necessary and Insurance Company is laiable to pay compensation. Hence, having considered the factual aspects of the present case, the vehicle involved in the accident is a car and the same is a LMV. When such being the case, the Insurance Company is liable to pay the compensation and the liability of the Insurance Company cannot be exonerated. Hence, point No.1 is answered as affirmative.

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Point No.2:

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Now coming to the aspect that whether it is a fit case to exercise the powers under Order 41 Rule 33 of CPC as contended by the counsel appearing for the claimant. Admittedly, the injured was aged about seven years when she

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met with the accident and she lost her left leg and the same was amputated below the knee and the same is also not in dispute and the doctor has not been examined. However, as per the schedule, if the amputation below the knee as per the Workmen’s Compensation Act, it comes to 50% and having taken note of the judgment of the Apex Court, which has been relied upon by the counsel for the claimant in a case of a minor girl who is aged about 6 years, taken note of minimum wages in the State of Karnataka as on the date of the accident and it was the accident of the year 2012 and the minimum wages of Rs.4,320/- is taken and 40% is added and in the present case, the accident is of the year 2013 and the minimum wages is Rs.4,320/- and in the case on hand, the disability is assessed to 50% in view of the schedule hence, 40% has to be added to Rs.4,320/-, it comes to Rs.6,048/- (4,320x40%) and the same has to be apportioned to the extent of 50% considering the age of the injured and the relevant multiplier is 18, hence, loss of future income comes to Rs.6,53,184/- (6,048x12x18x50%).

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The Tribunal awarded compensation of Rs.2,00,000/-

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on the head of pain and sufferings since she has suffered the

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amputation of below knee hence, the same is just and reasonable which does not require interference.

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The Tribunal awarded an amount of Rs.74,312/towards medical expenses and the same is based on the documentary evidence which does not require any interference and in the present case already the leg is amputated hence, it does not require any future medical expenses.

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However, the Court can award the compensation on the head of artificial limb. The Apex Court in the case of MOHD. SABER @ SHABIR HUSSAIN VS REGIONAL MANAGER, U.P. STATE ROAD TRANSPORTATION CORPORATION reported in CIVIL APPEAL Nos.9070-9071/2022 , taken the life span of 70 years in a case of injured who is aged about 37 years and ordered to artificial limb at the cost of Rs.2,60,000/- and also taken the life span of artificial limb for 15 years and here is a case of a girl who was aged about seven years and she has to live with the amputation hence, she is entitled for an amount of Rs.2,60,000/- each for 4 artificial limb throughout her life and cost of artificial limb would be Rs.10,40,000/-. The Apex Court also awarded the compensation of Rs.5,00,000/-on the head of

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maintenance and that is in a case of 37 years hence, it is appropriate to award an amount of Rs.5,00,000/- on the head of maintenance of artificial limb throughout her life.

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The injured was in the hospital for a period of 25 days from 15.10.2013 to 09.11.2013 and again 5 days from 14.04.2014 to 19.04.2014 hence, the claimant is entitled for an amount of Rs.30,000/- on the head of attendant charges, special diet and also conveyance.

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The claimant is also entitled for the compensation of Rs.1,00,000/- towards loss of amenities since she has to lead her rest of life with the disability of 50% and with an amputation and the Tribunal awarded an amount of Rs.1,00,000/- and the same is just and reasonable and does not requires any interference.

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The Tribunal awarded an amount of Rs.2,00,000/towards marriage prospectus and the same is just and reasonable and does not requires any interference.

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Hence, in all the claimant is entitled for an amount of Rs.27,97,496/-.

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The contention of the learned counsel for the Insurance Company is that in an appeal filed by the insured, this Court cannot invoke Order 41 Rule 33 and the said submission cannot be accepted for the reason that Order 41 Rule 33 can be invoked when an injustice is caused when not awarded the just and reasonable compensation and even in an appeal filed by the insured as well as Insurance Company in the absence of appeal filed by the claimant and the same is settled law and in order to meet the ends of justice and to set right the injustice caused to the claimant. Hence, this Court invoked Order 41 Rule 33 in the present case. Thus, this point is answered accordingly.

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In view of the discussions made above, I pass the

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following:

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ORDER

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(i) The appeal is allowed.

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(ii) The impugned judgment and award of the Tribunal dated 12.01.2017 passed in MVC No.65/2014 is modified granting compensation of Rs.27,97,496/- as against Rs.7,24,315/-

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with interest at 6% per annum on the enhanced compensation amount excluding the amount of Rs.10,40,000/- and Rs.5,00,000/which are awarded on the head of artificial limb and towards maintenance respectively from the date of petition till deposit.

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(iii) The liability fastened on the insured is set aside.

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(iv) The Insurance Company is directed to pay the compensation amount with interest within six weeks from today.

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