National Insurance Company Limited Vs B Jayanth

THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 28.01.2022 PASSED IN MVC NO. 1689/2010 ON THE FILE OF THE III ADDITIONAL DISTRICT JUDGE AND MACT, MYSURU, AWARDING COMPENSATION OF RS.8,19,880/WITH INTEREST AT 6 PERCENT P.A. ON RS.2,75,560/- FROM THE DATE OF PETITION TILL THE DATE OF REALIZATION.

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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NC: 2025:KHC:31715 MFA No. 4276 of 2022

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HC-KAR

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CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

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ORAL JUDGMENT

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Aggrieved by the award passed in M.V.C.No.1689/2010 dated 28.01.2022 by III Additional District Judge and MACT, Mysuru, the insurance company is before this court on two grounds, one is on the liability and the other ground is on the quantum.

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The claim petition is filed under section 166 of MV Act, seeking compensation of an amount of Rs.5,05,000/- along with interest at 12% per annum. It is the case of the claimant that the claimant is a minor and studying in 3^rd standard. On 25.12.2008 at about 4.30 p.m., when the claimant and his father were walking on the left side of the road, the driver of auto rickshaw drove the same in a rash and negligent manner and dashed to the claimant and he had sustained injuries and as per the evidence of the doctor he has sustained 15% disability.

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As there is a valid policy, the tribunal has held that the insurance company is liable to pay the compensation and

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HC-KAR

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granted compensation of an amount of Rs.8,19,880/- as per

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the table given below:

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	Heads	Co	mpensation Awarded
1.	Pain and Suffering	Rs.	50,000/-
2.	Medical Expenses	Rs.	1,91,560/-
3.	Special diet, Attendant charges, travelling and Miscellaneous expenses	Rs.	33,000/-
4.	Future Medical expenses	Rs.	1,000/-
5.	Loss of Future income	Rs.	5,44,320/-
	TOTAL	Rs.	8,19,880/-

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It is the case of the insurance company that the accident had occurred on 25.12.2008. As per Ex.R-5 the permit is renewed upto 07.10.2013. As the permit is renewed up to 2013 as could be seen from Ex.R-5 it has to be held that he is having a valid permit. The tribunal has held that as a permit is renewed up to 2013 as it could be seen from Ex.R5 itself, it has to be held that there is a valid permit. Therefore, it has to be held that the insurance company has failed to prove that the autorickshaw in question had no valid permit at the time of the accident.

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NC: 2025:KHC:31715 MFA No. 4276 of 2022

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HC-KAR

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Learned counsel appearing for the insurance company submits that as on the day the accident had happened, the vehicle was not having a valid permit, that permit was later obtained. As per the law laid down by the Hon’ble Apex Court in case of Rani and others Vs. National Insurance Co. Ltd. and others¹ the principal of pay and recover will apply, which the tribunal has failed to consider. Then coming to the compensation learned counsel appearing for the insurance company submits that when the boy is a minor and he has suffered 15% of disability, the tribunal ought to have applied the law laid down in case of Master Mallikarjun Vs.

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Divisonal Manager, National Insurance Co. Ltd.² . It is submitted that the tribunal had considered as if the person is working and had considered the loss of future income which is contrary to the law laid down by the Hon’ble Apex Court in the

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Master Mallikarjun’s case referred supra . Learned counsel had particularly relied on para No.12 of the judgment passed by the Hon’ble Apex Court referred supra which reads thus:

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12. Though it is difficult to have an accurate assessment of the compensation in the case of children suffering disability on account of

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1 (2018) 8 SCC 492

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2 2014 14 SCC 396

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HC-KAR

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a motor vehicle accident, having regard to the relevant factors, precedents and the approach of various High Courts, we are of the view that the appropriate compensation on all other heads in addition to the actual expenditure for treatment, attendant, etc., should be, if the disability is above 10% and upto 30% to the whole body, Rs.3 lakhs; upto 60%, Rs.4 lakhs; upto 90%, Rs.5 lakhs and above 90%, it should be Rs.6 lakhs. For permanent disability upto 10%, it should be Re.1 lakh, unless there are exceptional circumstances to take different yardstick.

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Learned counsel appearing for the respondent submits that this is the second round of litigation, earlier this court has remanded the matter and after the remand the tribunal had considered all the aspects and granted the compensation. It is submitted that there are no grounds to interfere.

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Having heard the learned counsels on either side, perused the entire material on record. This is the case where the minor is injured. He was studying in 3^rd standard and the Hon’ble Apex Court in Master Mallikarjun’s case referred supra had laid down the law how the compensation has to be granted and it is held by the Hon’ble Apex Court that the appropriate compensation on all the heads, in addition to the actual expenditure for treatment, attendant charges should be, if the disability is above 10% up to 30% to the whole body

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HC-KAR

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Rs.3,00,000/-, up to 60% Rs.4,00,000/- and up to 90% Rs.5,00,000/- and above 90% it should be about Rs.6.00 lakhs and for the permanent disability at 10% it should be about Rs.1,00,000/-. Apart from that for discomfort, incidental expenses and future medical expenses and for other heads, the claimant is entitled for the compensation. In this case, the disability that is sustained by the claimant is 15%, then under the head of pain and suffering already undergone and to

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be suffered in future, mental and physical shock, hardship, inconvenience, discomfort, loss of amenities and permanent disability and on all these heads, he is entitled for compensation of an amount of Rs.3,00,000/- . When it comes to discomfort, inconvenience and loss of the parents , this accident has taken place in the year 2008, considering the income at Rs.4,500/- for five months an amount of Rs.22,500/- is granted. The medical expenses that are spent for the claimant are an amount of Rs.1,91,560/- and no interference is required . Towards attendant charges and other benefits as he was there in the hospital for 21 days, the tribunal had granted an amount of Rs.33,000/- and this Court is not inclined to interfere with the

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HC-KAR

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same. Altogether, the claimant is entitled for compensation of an amount of Rs.5,47,060 /-. Accordingly, the compensation is reduced from an amount of Rs.8,19,880/- to Rs. 5,47,060/-

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The claimant is therefore, entitled to the compensation

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under the following heads:

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Sl. No.	Heads	Co A	mpensation warded by Tribunal	Compensation Awarded by this Court
1	Pain and Suffering	Rs.	50,000/-	3,00,000/-
2	Medical Expenses	Rs.	1,91,560/-	1,91,560/-
3	Special Diet Attendant charges, travelling and miscellaneous expenses	Rs.	33,000/-	33,000/-
4	Discomfort, inconvenience and loss of parents	Rs.	----	22,500/-
5	Future Medical Expenses	Rs.	1,000/-	--
6	Loss of future income	Rs.	5,44,320/-	--
	TOTAL	Rs.	8,19,880/-	5,47,060/-

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When it is comes to liability, the tribunal has held that

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the accident has occurred on 25.12.2008. As per Ex.R-5 the permit is renewed upto 07.08.2013. Hence, there is a valid

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HC-KAR

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permit and the Insurance Company is liable to pay the compensation.

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Learned counsel appearing for the Insurance

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Company has drawn the attention of the Court to Ex.R-5 which says that the permit of the opposite vehicle is replaced on 22.01.2009 and the accident had taken place on 25.12.2008. This clearly shows that as on the date of the accident there is no valid permit to the vehicle to ply. In the light of the law laid down in various judgments, Rani and others Vs. National Insurance Company Ltd and others referred supra , the Insurance Company is liable to pay the compensation and recover the same from the owner of the vehicle.

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i. Accordingly, the appeal filed by the Insurance Company is partly allowed by reducing the compensation from an amount of Rs.8,19,880/- to Rs. 5,47,060/- at 6% interest . The insurance company shall pay the amount and recover the same from the owner of the vehicle.

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ii. The amount in deposit shall be forthwith transferred to the Tribunal.

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HC-KAR

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iii. The Insurance Company shall deposit remaining amount if any within 6 weeks.

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iv. Registry is directed to return the Trial Court Records to the Tribunal, along with certified copy of the order passed by this Court forthwith without any delay.

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v. No costs.

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vi. Pending miscellaneous petitions, if any, shall stand closed.

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SD/(LALITHA KANNEGANTI) JUDGE

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TS,RJ List No.: 1 Sl No.: 1

National Insurance Company Limited v. B Jayanth

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National Insurance Company Limited v. B Jayanth

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