Partly allowed

Kum. Tejeshwini D/O Revanappa Hemanagoudra v. Shri. Anand S/O Basavanneppa Parasappanavar

Karnataka HC11 Jan 2024MFA/100412/2022

Case brief

AI extract

What is this about?

The High Court Enhanced the compensation awarded by the Motor Vehicle Accident Claims Tribunal from Rs.6.51 lakh to Rs.32.60 lakh for a minor girl with 85% disability, allowing insurer first payment and recovery from the unlicensed driver.

What did the court decide?

Compensation enhanced to Rs.32,60,476/- with interest; insurer to pay first and recover from driver; Rs.20 lakhs fixed deposit authorized.

Kum. Tejeshwini D/O Revanappa Hemanagoudra Vs Shri… — Motor Accident Claims | Karnataka HC (2024)

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1 - NC: 2024:KHC-D:676-DB MFA No. 100412 of 2022

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 11^TH DAY OF JANUARY, 2024

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PRESENT

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THE HON'BLE MR JUSTICE S G PANDIT

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AND

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THE HON'BLE MR JUSTICE K V ARAVIND

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MISCELLANEOUS FIRST APPEAL NO. 100412 OF 2022 (MV-I)

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BETWEEN:

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KUM. TEJESHWINI D/O. REVANAPPA HEMANAGOUDRA, AGE: 23 YEARS, OCC. STUDENT, NOW NILL, REPRESENTED BY HER NATURAL GUARDIAN I.E. NEXT FRIEND MOTHER.

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SMT. JAYAVVA W/O. REVANAPPA HEMANAGOUDRA, AGE: 49 YEARS, OCC: HOUSEHOLD WORK, R/O. MEDLERI VILLAGE, PIN-581221, TQ: RANEBENNUR, DIST: HAVERI.

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…APPELLANTS

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(BY SRI. HANAMANT R. LATUR, ADVOCATE)

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AND:

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CHANDRASHEKAR LAXMAN KATTIMANI Digitally signed by CHANDRASHEKAR LAXMAN KATTIMANI Date: 2024.01.22 17:20:28 +0530

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SHRI. ANAND S/O. BASAVANNEPPA PARASAPPANAVAR, AGE: 50 YEARS, OCC: BUSINESS, R/O. AREMALLAPUR VILLAGE, PIN-581115. TQ. RANEBENNUR, DIST: HAVERI.

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THE LEGAL CLAIMS MANAGER, SHRIRAM GENERAL INSURANCE CO. LTD, 1ST FLOOR, V. A. KALBURGI HALLMARK, BESIDE INDUSLAND BANK, DESAI CROSS, PINTO ROAD, HUBLI, PIN 580020, DIST: DHARWAD.

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…RESPONDENTS

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(BY SRI. VIJAYKUMAR K.KOTIN, ADV. FOR RESPONDENT NO.1; SRI. NAGARAJ C.KOLLOORI, ADV. FOR RESPONDENT NO.2)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLE ACT, PRAYING TO ENHANCE THE COMPENSATION BY

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2 - NC: 2024:KHC-D:676-DB MFA No. 100412 of 2022

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MODIFYING THE JUDGMENT AND AWARD PASSED BY MOTOR ACCIDENT CLAIMS TRIBUNAL, RANEBENNUR, IN MVC NO.785/2018 DATED 29-04-2021 IN INTEREST OF JUSTICE AND EQUITY.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, S G PANDIT, J., DELIVERED THE FOLLOWING:

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JUDGMENT

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Though this appeal is listed for admission, with consent of both learned counsel, matter is taken up for final disposal.

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2. The appellant-claimant through her natural

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guardian mother is in appeal not being satisfied with the quantum of compensation awarded under judgment and award dated 29.04.2021 in M.V.C. No.785/2018 on the file of the learned Motor Vehicle Accident Claims Tribunal, Ranebennur (for short, ‘Tribunal’), praying for enhancement of compensation for the injuries sustained in a road traffic accident.

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3. Heard learned counsel Sri. Hanamant R.Latur, for appellants-claimants, Sri. Nagaraj C.Kolloori, learned counsel for respondent No.2 / Insurance Company and Sri. Vijaykumar K.Kotin, learned counsel for respondent

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3 - NC: 2024:KHC-D:676-DB MFA No. 100412 of 2022

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No.1 and perused the appeal papers along with original records.

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4. The appellant/claimant filed a claim petition

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under Section 166 of the Motor Vehicles Act, 1988 claiming compensation for the injuries sustained in the road traffic accident that occurred on 19.10.2016 involving Mazda vehicle bearing registration No.KA-27/A-6476. It is stated that the driver of the offending vehicle in a high speed rash and negligent manner dashed to the appellant who was proceeding on the left side of the road resulting in severe head injuries to the claimant. It is stated that claimant was aged 19 years as on the date of accident and was a student studying in PUC.

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5. On service of notice, respondent No.1/drivercum-owner remained ex-parte. Whereas respondent No.2/Insurance Company appeared and filed its written statement denying the claim petition averments. Further, the Insurance Company contended that respondent No.1

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NC: 2024:KHC-D:676-DB MFA No. 100412 of 2022

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was not possessing the driving licence as on the date of accident.

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6. Before the Tribunal, the mother of the claimant

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examined herself as PW1 and also examined PW2-doctor

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and got marked documents as Exs.P1 to P22. Respondent/Insurance Company examined RW1 and marked Exs.R1 to R7 in support of their case. The Tribunal on appreciation of the material on record awarded a total compensation of Rs.6,51,276/- with interest at 7% per annum from the date of petition till date of realization on the following heads and saddled the liability on respondent No.1 holding that respondent No.1/owner-cum-driver had no licence to drive the offending vehicle.

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Towards pain and suffering Rs. 25,000/Towards loss of future income Rs.3,00,000/Towards medical expenses Rs.1,16,276/Towards conveyance, food, Nourishment expenses Rs. 10,000/Towards loss of marriage prospects Rs.2,00,000/- -----------------Total Rs.6,51,276/------------------

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5 - NC: 2024:KHC-D:676-DB MFA No. 100412 of 2022

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7. While awarding the above compensation, the

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Tribunal awarded compensation of Rs.3,00,000/- under the head of loss of future income placing reliance on Master Mallikarjuna V/s Divisional Manager, the National Insurance Company Limited and another¹ .

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8. Learned counsel Sri Hanamant R.Latur for claimant would submit that compensation awarded by the Tribunal for the injury sustained by the claimant is on the lower side and would submit that the claimant would be entitled for much higher compensation. Learned counsel would submit that the claimant has sustained severe head injury and PW2-doctor, has opined that the claimant suffered 85% head injury, which has resulted in 87.5% whole body disability. Learned counsel would submit that Ex.P15-disability certificate issued by Kasturba Hospital, indicates whole body disability at 87.5%. Further, learned counsel invites attention of this Court to order dated 05.12.2023 wherein this Court referred the appellant to

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1 AIR 2014 SC 736

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6 - NC: 2024:KHC-D:676-DB MFA No. 100412 of 2022

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Medical Board and the Medical Board, on examination, submitted its report. In terms of the Medical Board report, the claimant suffers 85% disability and further he submits that the claimant suffers “Diffuse Cerebral Diema and bilateral subdural hygroma and diffuse exonal.” Further, learned counsel would submit 85% whole body disability is to be considered as 100% functional disability and the claimant would not be in a position to move without the help of attendant. In that circumstance, he prays for considering 100% disability.

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9. Learned counsel would pray for assessing the

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income notionally and for the accident of the year 2016, he submits that notional income would be Rs.8,750/- in terms of the chart prepared by the Karnataka Legal Services Authority. Learned counsel would submit that the compensation awarded on the head of pain and suffering, towards conveyance, food and nourishment and towards loss of marriage prospects are on the lower side and prays for enhancement appropriately. Further, learned counsel

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would submit that the claimant would be entitled for adding 40% of the income assessed towards future prospects. Learned counsel would place reliance on the decision of the Hon’ble Apex Court in the case of Kajal V/s Jagadish Chand and others² and also Rajeev Sharma V/s Yogendra Singh and others³ to submit that it is a case for considering 100% functional disability. Thus, he prays for allowing the appeal and to enhance the compensation.

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10. Insofar as liability saddled on respondent No.1/driver-cum-owner, learned counsel would submit that it is a case for pay and recovery and it is for the Insurance Company to pay at the first instance and to recover the same from the 1^st respondent in terms of the full bench decision of this Court in the case of New India Assurance Company Limited V/s Yallavva and

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another⁴ .

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2 (2020) 4SCC 413

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3 2023 ACJ 633

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4 ILR 2020 KAR 2239

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- 8 - NC: 2024:KHC-D:676-DB MFA No. 100412 of 2022

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11. Per contra , learned counsel Sri Nagaraj C.Kolloori for respondent-Insurance Company would submit that the Tribunal rightly awarded just compensation, which needs no interference. Further, learned counsel would submit that the appellant-claimant is not aged 18 years as contended. He submits that she is a minor aged about 17 years. Therefore, he submits that notional income cannot be taken and rightly the Tribunal awarded compensation in terms of Master Mallikarjun case (supra). Learned counsel would further submit that admittedly respondent No.1/driver-cum-owner of the vehicle had no licence and therefore, the Tribunal rightly saddled liability on respondent No.1. Hence, he prays for dismissal of the appeal.

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12. Having heard the learned counsel for the parties and on perusal of the appeal papers along with original records, the following points that would fall for consideration in this appeal.

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9 - NC: 2024:KHC-D:676-DB MFA No. 100412 of 2022

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i. Whether the quantum of compensation awarded by the Tribunal is just compensation?

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ii. Whether the Tribunal is justified in saddling the liability on 1^st respondent?

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13. Answer to the above points is ‘in the negative’ for the following reasons.

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14. The accident that occurred on 19.10.2016 involving Mazda vehicle bearing registration No.KA-27/A6476 and the injuries sustained by the claimant is not in dispute in this appeal. The claimant is before this Court seeking enhancement of compensation not being satisfied with the quantum of compensation awarded by the Tribunal.

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15. Before the Tribunal, the mother of the claimant examined herself as PW1. She has stated that her daughter was studying in PUC Science and she was a brilliant student. She has also deposed that her daughter sustained injuries all over the body. In the cross-

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10 - NC: 2024:KHC-D:676-DB MFA No. 100412 of 2022

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examination, she has stated that claimant/daughter suffered grievous injury to the head. In support of claimant’s case, PW2-doctor was examined. PW2 working as a Neurosurgeon, Manipal Hospital has opined that claimant suffers from 87.5% disability due to injury suffered by her. He has stated that the claimant has suffered “Diffuse Cerebral Diema and bilateral subdural hygroma and diffuse exonal.” Ex.P15 is disability certificate issued by the Kasturba Hospital, which indicates that the claimant suffers 87.5% disability. Ex.P15 also indicates that her CT brain revealed diffuse cerebral edema and bilateral subdural hygroma and contusions suggestive of diffuse axonal injury.

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16. This Court by order dated 05.12.2023 referred the claimant to Medical Board for the purpose of examining the disability. The Medical Board on examination has forwarded its opinion under the Medical Board Certificate dated 18.12.2023, which reads as follows:

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11 - NC: 2024:KHC-D:676-DB MFA No. 100412 of 2022

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“With reference to your letter, after Medical examination of MS. Tejaswini Revanappa Hemanagoudra 23 yrs, Female, UHID No.20230379691 a case of Head Injury treated at SS Medical College Davangere and Kasturba Medical College year 2016 is Disability Percentage : 85% (Eighty Five Percent).”

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17. The above Medical Board Certificate confirms that claimant-appellant suffers from 85% disability due to head injury. Due to her head injury to an extent of 85% disability, the claimant would not be in a position to carry out any work which means it is to be assessed at 100% functional disability.

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18. Ex.P16 is claimant’s SSLC marks card, which indicates date of birth of the claimant as 02.10.1999. As on the date of accident in terms of the date of birth, the appellant-claimant was aged 17 years. In the case of Kajal (supra), the Hon’ble Apex Court observed that while assessing the income or notional income, each case has to be decided on its own evidence and the Hon’ble Apex Court for the purpose of determining the compensation

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took Rs.4,846/- per month minimum wages and awarded compensation. In the said case, the claimant was aged 12 years. In the instant case, the claimant is aged 17 years and taking note of the minimum wages notified, it would be appropriate to assess notional income of the claimantappellant at Rs.8,000/- per month. Further in terms of Kajal case (supra), the appellant/claimant would be entitled for adding 40% of the assessed income towards future prospects. The claimant-appellant has suffered 85% total whole body disability and we have assessed 100% functional disability. Thus, the claimant would be entitled

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for modified compensation on the head of loss of future income as under:

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Rs.8,000(Income) + 40%(future prospects) x 12 (months) x 18 (multiplier) x 100% disability = Rs.24,19,200/-

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19. Since the claimant is not in a position to move without the attendant. The claimant-appellant would also be entitled for attendant charges of Rs.1,00,000/-.

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20. The compensation awarded by the Tribunal on other heads also on the lower side. The claimant-appellant was inpatient for more than 23 days and has suffered severe head injury. Therefore, we are of the opinion that the compensation of Rs.25,000/- awarded on the head of pain and suffering is on the lower side. The same is enhanced to Rs.1,00,000/-. The compensation awarded on the head of conveyance, food, nourishment at Rs.10,000/- is also on the lower side, when the claimant was inpatient for more than 23 days. Hence, the same is enhanced to Rs.25,000/- .

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21. The compensation awarded by the Tribunal on the head of loss of marriage prospects at Rs.2,00,000/- is on the lower side. Taking note of the injury/disability suffered by the claimant, we are of the view that the claimant has lost her marriage prospects. A co-ordinate bench of this Court had an occasion to consider awarding compensation on non-pecuniary head i.e. loss of marriage prospect in a case reported in ILR 2022 KAR 793, Sri

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Basavaraj V/s Sri Umesh and another, at Paragraphs

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13 to 15 has held as follows:

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“13. Keeping in mind the above-said principles governing the award of compensation on non-pecuniary heads this court has to guestimate the compensation payable to the claimant. As already noted above the disability suffered by the claimant is irreversible which destroyed his marriage prospect. Even if married, the claimant is not in a position to perform certain conjugal obligations. The claimant is deprived of conjugal bliss. The claimant cannot have children of his own.

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The concept of the institution of marriage is one of the noblest concepts evolved by society. Marriage, in addition to providing support, happiness, companion and progeny will also confer purpose and meaning to life. Married life opens up one of the most important facets of life. After marriage, the married couple lives for one another sharing the responsibility, pleasure and sorrow of life. Children bring a source of joy and hope. Since the marriage prospect of the claimant is wiped out, the claimant is deprived of all the pleasure and benefits of married life. The loss is so huge and is incapable of evaluation in terms of money.

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Given the kind of disability suffered by the claimant, the mental trauma which the claimant has to undergo for the rest of his life, is much more painful than the physical pain that he has suffered immediately after the accident. The mental trauma of having to remain single, and answering the curious questions posed by the people around throughout life, for not getting married, are some of the things not easy to cope with. The trauma is going to be perennial and unabated. Such being the position, the duty is cast upon the Tribunals and Courts to award just compensation to ensure that the unbearable mental trauma is mitigated to the extent possible and the claimant can live with some dignity and find some solace in the monetary compensation awarded.”

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22. When the claimant has lost her marriage prospects, any amount of compensation would not compensate. However, we are of the view that the claimant-appellant would be entitled for another sum of Rs.3,00,000/- on the said head. In all, the claimant would be entitled for a sum of Rs.5,00,000/- on the head of loss of marriage prospects.

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23. The Tribunal had saddled liability on the 1^st respondent-owner as the 1^st respondent-owner had no licence to drive the vehicle. The 1^st respondent/drivercum-owner has not placed on record any document to establish that he had licence. Full bench of this Court in Yallavva’s case (supra) has held that wherever it is a case of no licence to drive, it is a case for ‘pay and recovery’. Therefore, following the decision in Yallavva’s case (supra), we are of the view that it is for the insurer to pay compensation at the first instance and recover the same from the 1^st respondent/driver-cum-owner of the vehicle.

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24. Thus, the claimant would be entitled to modified compensation as under:

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Sl.No.	Particulars	Amount
1	Loss of future income	Rs.24,19,200/-
2	Towards attendant charges	Rs.1,00,000/-
3	Pain & suffering	Rs.1,00,000/-
4	Towards medical expenses	Rs.1,16,276/-
5	Towards conveyance, food and nourishment expenses	Rs.25,000/-
6	Loss of marriage prospects	Rs.5,00,000/-
	Total	Rs.32,60,476/-

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NC: 2024:KHC-D:676-DB MFA No. 100412 of 2022

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25. Thus, the claimant would be entitled to total compensation of Rs.32,60,476/- as against

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Rs.6,51,276/- awarded by the Tribunal.

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26. Hence, we pass the following order:

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ORDER

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a) The appeal is allowed in part.

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b) The impugned judgment and award passed by the Tribunal is modified to the extent that the claimant would be entitled to total compensation of Rs.32,60,476/- as against Rs.6,51,276/- awarded by the Tribunal.

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c) The enhanced compensation amount of Rs.26,09,200/- shall carry interest at the rate of 6% per annum from the date of petition till date of payment.

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d) The respondent/insurance company shall pay the entire compensation amount along with accrued interest in favour of the claimant at the first instance and shall recover the same from the 1^st respondent/owner.

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e) Respondent-Insurance Company shall deposit the enhanced compensation

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NC: 2024:KHC-D:676-DB MFA No. 100412 of 2022

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amount along with accrued interest before the Tribunal within a period of six weeks from the date of receipt of certified copy of this judgment.

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f) On such deposit, a sum of Rs.20 lakhs shall be kept in fixed deposit in any nationalized bank in the name of the appellant/injured for a period of ten years with liberty to the appellant to withdraw periodical interest accrued thereon. Remaining amount with accrued interest shall be released in favour of the appellant/injured immediately.

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g) Registry to transmit the records to the Tribunal forthwith.

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h) Draw modified award accordingly.

Sd/JUDGE

Sd/JUDGE

CLK

List No.: 1 Sl No.: 16

Kum. Tejeshwini D/O Revanappa Hemanagoudra v. Shri. Anand S/O Basavanneppa Parasappanavar

Case brief

What is this about?

What did the court decide?

Kum. Tejeshwini D/O Revanappa Hemanagoudra v. Shri. Anand S/O Basavanneppa Parasappanavar

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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