Partly allowed

L Kiran Kumar v. Managing Partner

Karnataka HC23 Oct 2024MFA/2919/2021

Case brief

AI extract

What is this about?

Child claimant blinded in lorry-car collision appealed for enhanced compensation; insurer contested liability citing lack of permit. Court applied Kajal and Pranay Sethi to recompute compensation at Rs.21,82,890/-, enhancing it by Rs.13,56,640/- with interest, and directed insurer to pay and recover from owner per Rani.

What did the court decide?

Enhanced compensation of Rs.13,56,640/- with 9% interest; insurer to deposit within four weeks and recover from owner via execution petition.

L Kiran Kumar Vs Managing Partner — Motor Accident Claims | Karnataka HC (2024)

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1 - NC: 2024:KHC:42653-DB MFA No.2919/2021 C/w MFA No.360/2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 23^RD DAY OF OCTOBER, 2024

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PRESENT

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THE HON'BLE MRS JUSTICE K.S.MUDAGAL

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AND

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THE HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL MISCELLANEOUS FIRST APPEAL No.2919/2021(MV-I)

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C/w

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MISCELLANEOUS FIRST APPEAL No.360/2021(MV-I)

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MFA No.2919/2021:

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BETWEEN:

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L KIRAN KUMAR S/O LOKESH AGED ABOUT 14 YEARS BEING MINOR REP. BY HIS NATURAL GUARDIAN FATHER LOKESH R/AT NO.7/105, HIRETHURPI KARIKERA, ANANTHAPUR DISTRICT ANDHRAPRADESH - 515 305 …APPELLANT

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(BY SRI R.SHASHIDHARA, ADVOCATE)

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Digitally signed by K S RENUKAMBA Location: High Court of Karnataka

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AND:

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MANAGING PARTNER M/S THIRUMALASWAMY ASSOCIATES REP. BY JAYAPPA G MALANAYANAKANAHALLI MADHUGIRI TALUK TUMKUR DISTRICT - 572 132

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UNIVERSAL SOMPO GENERAL INSURANCE CO. LTD., REGIONAL OFFICE K.V.D. TOWERS, NO.7/3 II FLOOR, ABOVE BARCLAYS FINANCE OPP: 100 FEET ROAD OLD MADRAS ROAD

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NC: 2024:KHC:42653-DB MFA No.2919/2021 C/w MFA No.360/2021

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INDIRANAGAR

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BANGALORE - 560 038 …RESPONDENTS

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(BY SRI B.C.SHIVANNE GOWDA, ADVOCATE FOR R2; NOTICE TO R1 DISPENSED WITH V/C/O DTD:12.06.2024)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 22.10.2019 PASSED IN MVC NO.6906/2017 ON THE FILE OF THE I ADDITIONAL SMALL CAUSES JUDGE AND MACT, BENGALURU (SCCH-11) PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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MFA No.360/2021:

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BETWEEN:

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M/S UNIVERSAL SOMPO GENERAL INSURANCE COMPANY LTD., REGIONAL OFFICE, KVD TOWER NO.7/3, 2^ND FLOOR ABOVE BARCLAYS FINANCE OPP. TO 100 FEET ROAD OLD MADRAS ROAD INDIRANAGARA, BANGALORE -560 038 NOW REP. BY M/S UNIVERSAL SOMPO GENERAL INSURANCE COMPANY LTD., PLOT NO.EL94, KLS TOWER T.T.C INDUSTRIAL AREA MIDC, MAHAPE, NAVI MUMBAI – 470 701 …APPELLANT

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(BY SRI B.C.SHIVANNE GOWDA, ADVOCATE)

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AND:

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L KIRAN KUMAR S/O LOKESH AGED ABOUT 13 YEARS SINCE MINOR, REP. BY NATURAL GUARDIAN AND FATHER LOKESH R/AT NO.7/105, HIRETHURPI KARIKERA, ANANTHAPUR DISTRICT A.P. STATE – 515 305

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MANAGING PARTNER M/S THIRUMALASWAMY ASSOCIATES REP. BY JAYAPPA

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NC: 2024:KHC:42653-DB MFA No.2919/2021 C/w MFA No.360/2021

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R/AT G MALANAYAKANAHALLI MADHUGIRI TALUK

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TUMAKURU – 572 116 … RESPONDENTS

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(BY SRI R.SHASHIDHARA, ADVOCATE FOR R1;

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SRI V.JAVAHAR BABU, ADVOCATE FOR R2)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 22.10.2019 PASSED IN MVC NO.6906/2017 ON THE FILE OF THE I ADDITIONAL SMALL CAUSES JUDGE AND MACT, BENGALURU (SCCH-11), AWARDING COMPENSATION OF RS.8,26,250/- WITH INTEREST AT 9% P.A. FROM THE DATE OF PETITION TILL THE DATE OF REALIZATION.

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THESE MISCELLANEOUS FIRST APPEALS COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MRS JUSTICE K.S.MUDAGAL AND HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL

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ORAL JUDGMENT

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(PER: HON'BLE MRS JUSTICE K.S.MUDAGAL)

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Though these appeals have come up for admission, with consent of both side, the matters are taken up for final disposal.

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These appeals arise out of judgment and award dated 22.10.2019 in MVC No.6906/2017 passed by I Additional Small Causes Judge & MACT, Bangalore (SCCH-11) C/c XXIII Additional Small Causes Judge and XXI ACMM, Bangalore (SCCH-25).

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NC: 2024:KHC:42653-DB MFA No.2919/2021 C/w MFA No.360/2021

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The appellant in M.F.A.No.2919/2021 is the claimant and respondents in the said case were the respondents before the Tribunal. For the purpose of convenience, the parties are referred to henceforth according to their ranks before the Tribunal.

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On 14.03.2017 at 10.30 p.m. when the claimant

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and others were proceeding in Maruti Suzuki Car bearing Registration No.KA-03-Z-1642 near Anjaneyaswamy Temple of Hireturpi village, Madakashira Amarapuram Road, Ananthapur District, A.P., driver of the lorry bearing Registration No.KA-64-2550, came from the opposite direction, hit the car. In the accident, the claimant and other inmates of the car suffered injuries. The driver of the car died. At the relevant time, respondent Nos.1 and 2 were the registered owner and insurer of the lorry respectively.

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The claimant in the present case and other victims filed M.V.C.No.6905/2017, M.V.C.No.6906/2017 and M.V.C.No.6907/2017 before the Tribunal claiming

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compensation from the respondents alleging that the accident and consequent injuries and death occurred due to actionable negligence on the part of the driver of the lorry. The claimant in

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NC: 2024:KHC:42653-DB MFA No.2919/2021 C/w MFA No.360/2021

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MVC No.6906/2017 sought compensation of Rs.70,00,000/-

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from the respondents on the ground that due to the accident he has lost his eyes.

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Respondent No.1 did not contest the petitions. Respondent No.2 alone contested the petitions denying rashness and negligence on the part of the driver of the lorry, disability of the claimant and other aspects. The Tribunal consolidated M.V.C.No.6905/2017, M.V.C.No.6906/2017 and M.V.C.No.6907/2017 and recorded common evidence.

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At the time of the accident, the claimant was aged 10 years, so the claim petition was filed through his natural guardian/father Lokesh. He was examined as PW.2 and the doctor who treated the claimant was examined as PW.5. On behalf of the Insurer, its Official was examined as RW.1 and got marked Exs.R1 and R2. On behalf of the claimant, his medical records (Exs.P35 to P41) and police records (Exs.P15 to P26) were produced.

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The Tribunal on hearing the parties by the impugned judgment and award held that the accident occurred due to actionable negligence on the part of the driver of the lorry. The Tribunal relying on the evidence of PW.5 the doctor

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NC: 2024:KHC:42653-DB MFA No.2919/2021 C/w MFA No.360/2021

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held that, the claimant has lost both his eyes and suffered 100% permanent physical disability. Relying on the judgment of the Hon’ble Supreme Court in Master Mallikarjun v.

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Divisional Manager, the National Insurance Company Ltd .¹ , the Tribunal awarded compensation of Rs.6,00,000/- globally on the head of pain and sufferings, loss of amenities due to physical disability etc. The Tribunal in all awarded compensation of Rs.8,26,250/- on different heads as follows:

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Sl.	Particulars	Compensation
No.		amount in Rs.
1	Pain and suffering already undergone and to be suffered in future, mental and physical shock, hardship, inconvenience, and discomforts, etc. and loss of amenities in life on account ofpermanent disability.	6,00,000/-
2	Discomfort, inconvenience and loss of earnings to the parents during the period of hospitalization.	10,000/-
3	Medical expenses	2,16,250/-
	Total	8,26,250/-

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Challenging the said award, the claimant has filed

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M.F.A.No.2919/2021 and the Insurer has preferred M.F.A.No.360/2021.

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Sri R.Shashidhar, learned Counsel for the claimant

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reiterating the grounds of appeal submits that the compensation awarded on all the heads is on the lower side. He

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1 (2014) 14 SCC 396

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NC: 2024:KHC:42653-DB MFA No.2919/2021 C/w MFA No.360/2021

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submits that earlier judgment in Master Mallikarjun’s case referred to supra was considered by the Hon’ble Supreme Court subsequently in Kajal v. Jagdish Chand² wherein loss of future

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earnings based on the wage earned by the claimant was considered. The compensation ought to have been awarded on the head of loss of amenities, loss of marriage prospects, attendant charges of the parents etc. Thus he seeks enhancement of the compensation. So far as liability of the insurer, relying on the judgment of this Court in M.F.A.No.359/2021 and connected matters which relates to the same accident, he contends that the insurer is liable to pay the compensation and recover the same from respondent No.1/ registered owner of the lorry.

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Sri B.C.Shivanne Gowda, learned Counsel for respondent No.2/Insurer justifies the quantum of

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compensation. He further submits that as the insured vehicle was operating without permit in Andhra Pradesh, Insurer is not liable to pay the compensation. He further submits that since

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the victim was aged hardly 10 years, the judgment in Master Mallikarjun’s case referred to supra is applicable and not Kajal’s case referred to supra which involved case of total 2 (2020) 4 SCC 413

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NC: 2024:KHC:42653-DB MFA No.2919/2021 C/w MFA No.360/2021

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paraplegia. He also submits that loss of eyes does not make it a 100% disability and awarding interest at 9% per annum is unjustifiable.

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On careful examination the submissions of both side

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and the material on record, the questions that arise for consideration are:

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(i) Whether the compensation awarded to the claimant under the impugned award is just one?

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(ii) Whether insurer is liable to pay the compensation?

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Analysis

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So far as occurrence of the accident due to actionable negligence on the part of the driver of the lorry, the finding rendered in the connected cases namely M.V.C.No.6905/2017 and M.V.C.No.6907/2017 is confirmed by this Court in M.F.A.No.359/2021 and connected cases. Thus that has attained finality.

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Reg. Quantum:

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There was no dispute that as on the date of the accident, the claimant was aged 10 years. The evidence of PW.5 the doctor who treated the victim shows that after the accident, the claimant was initially treated in Government

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NC: 2024:KHC:42653-DB MFA No.2919/2021 C/w MFA No.360/2021

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Hospital, Ananthapura and then he was brought to Columbia

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Asia Hospital, where PW.5 was working. As per his evidence the claimant suffered the following injuries:

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“Patient is conscious, responding well.

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Right eye-patient was unable to appreciate light, lid edema, distorted globe with uveal tissue seen in the interpalpebral region, conjunctival chemosis.

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Left eye-patient was unable to appreciate light, lid edema, distorted globe, conjunctival chemosis, cornea flat, hyphema, scleral tear seen nasally.

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Was advised primary globe rupture repair under general anaesthesia under nil visual prognosis.

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Patient also had multiple facial injuries, injury to left knee, right wrist joint for which he was being evaluated and managed by concerned specialists.”

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The evidence of PW.5 further shows that the patient

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was initially treated between 14.03.2017 to 16.03.2017, due to unaffordability, he got discharged and was admitted to Victoria Hospital. Again he was brought back from Victoria Hospital, Bangalore on 17.03.2017 to Columbia Asia Hospital and from 17.03.2017 till 31.03.2017 the claimant was treated there. He underwent several medical procedures. Finally, PW.5 has given opinion that after all investigation, it was found that the patient has loss of vision in both eyes and suffered 100% permanent physical disability (permanent physical impairment). Nothing was elicited in his cross-examination to impeach her evidence.

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NC: 2024:KHC:42653-DB MFA No.2919/2021 C/w MFA No.360/2021

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Therefore, the Tribunal was justified in considering 100% disability.

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The Tribunal globally awarded compensation of Rs.6,00,000/- relying on the judgment of the Hon’ble Supreme Court in Master Mallikarjun’s case referred to supra . However, subseqeuntly, in the later judgment in Kajal’s case referred to supra , Hon’ble Supreme Court has adopted the method of considering the income of the victim, multiplied by applicable multiplier. Therefore subsequent judgment has to be followed. In Kajal’s case referred to supra, the victim was aged 12 years and monthly income was notionally assessed at Rs.4,846/- per month. That can be rounded off to Rs.4,850/- per month and applied to the present case.

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Since the claimant had 100% disability/impairment, in view of the judgment of the Hon’ble Supreme Court in National Insurance Company Ltd., v. Pranay Sethi³ case, 40% has to be added to the income of the claimant by way of future prospects. The applicable multiplier is 18. Therefore the compensation payable on the head of future earnings is Rs.4,850/+ Rs.1,940/= Rs.6,790 x 12 x 18 = Rs.14,66,640/-.

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3 (2017) 16 SCC 680

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NC: 2024:KHC:42653-DB MFA No.2919/2021 C/w MFA No.360/2021

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Medical expenses of Rs.2,16,250/- is awarded based on the records and that needs to be maintained. The evidence of PW.5 shows that the victim has lost vision of both eyes. There was fracture of bilateral floor and medial wall of orbits, undisplaced fracture of bilateral lateral walls, blow out fracture of bilateral orbital floor with fatty herniation on left side along with other facial injuries. Therefore the compensation of Rs.1,00,000/- on the head of pain and sufferings would be just.

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Due to loss of vision, the claimant is deprived of enjoyment of several aspects like any other ordinary person. Awarding compensation of Rs.2,50,000/- on the head of loss of amenities would meet the ends of justice.

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Marriage prospects of the claimant are lowered due to loss of vision. Therefore awarding Rs.1,00,000/- as compensation for loss of marriage prospects would be proper.

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The claimant was hospitalized for 14 days. Awarding Rs.15,000/- on the head of diet, food, nourishment and attendant charges during hospitalization period would be just and proper.

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NC: 2024:KHC:42653-DB MFA No.2919/2021 C/w MFA No.360/2021

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The claimant’s father was next friend in the present

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case. He could not have attended to work after the accident and during hospitalization period of the claimant for atleast three months. Awarding global compensation of Rs.35,000/- as loss of his earnings would meet the ends of justice. Therefore

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just compensation payable is as follows:

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Sl.	Particulars	Compensation
No.		amount in Rs.
1	Loss of future earnings	14,66,640/-
2	Medical Expenses	2,16,250/-
3	Pain and sufferings	1,00,000/-
4	Loss of amenities	2,50,000/-
5	Loss of marriageprospects	1,00,000/-
6	Diet, food, nourishment and attendant charges	15,000/-
7	Loss of income of father of the claimant during hospitalizationperiod	35,000/-
	Total	21,82,890/-
	Less awarded bythe Tribunal	8,26,250/-
	Enhanced compensation	13,56,640/-

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So far as rate of interest, in the connected matters,

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the contention of the Insurer is rejected. Therefore interest

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awarded at 9% is maintained.

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Reg. Liability:

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Insurer/respondent No.2 contended that at the time

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of the accident, lorry in question was being operated in Andhra Pradesh, though there was no permit to operate the vehicle in

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NC: 2024:KHC:42653-DB MFA No.2919/2021 C/w MFA No.360/2021

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that State, due to violation of policy condition insurer is not liable to indemnify the compensation. Similar contention was raised in the connected matters preferred before the learned Single Judge. In those cases, learned Single Judge relying on the judgment of the Hon’ble Supreme Court in Rani v. National Insurance Company Ltd.⁴ held that though operating without permit amounts to fundamental breach of policy condition, insurer is liable to pay compensation and recover the same from the insurer. The same has to be followed in this case also. Therefore both appeals deserve to be allowed in part. Hence, the following:

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ORDER

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The appeals are allowed in part.

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The award in M.V.C.No.6906/2017 on the file of I Additional Small Causes Judge & MACT, Bangalore (SCCH-11) C/c XXIII Additional Small Causes Judge and XXI ACMM, Bangalore (SCCH-25) is modified as follows:

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(a) The claimant is entitled to enhanced compensation of Rs.13,56,640/- with interest thereon at 9% per annum from the date of the petition till realization.

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4 (2018) 8 SCC 492

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