Viona Gomes Vs Heremane Sunil D Souza

THE NEW INDIA ASSURANCE CO. LTD., FLAT NO.3, HCL FLAT NO.6, GOLD SPOT FACTORY COMPOUND, CHAKALA ANDHERI WEST, MUMBAI-6, REP BY ITS DIVISIONAL MANAGER, DIVISIONAL OFFICE AT UDUPI, SRI RAM ARCADE, HEAD POST OFFICE UDUPI

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DEEPAK D PATNAKER MAJOR, PLOT NO.3 HCL-FLAT NO.6, NEAR GOLD SPOT FACTORY COMPOUND, CHAKALA ANDHERI (E), MUMBAI

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NC: 2025:KHC:9638 MFA No. 7311 of 2015

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RAVEENDRA PRABHU AGED ABOUT 63 YEARS, S/O MADHAVA PRABHU, R/AT CHAKRATHIRTHA, KUNJIBETTU POST, SHIVALLI VILLAGE, UDUPI TALUK- 576 101

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THE UNITED INDIA INSURANCE CO. LTD., REP. BY ITS DIVISIONAL MANAGER, DIVISIONAL OFFICE, KRISHNA COMPLEX, 2^ND FLOOR, G.B. PANTH ROAD, MOSQUE ROAD, UDUPI-576 101

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…RESPONDENTS

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(BY SRI. C.R.RAVISHANKAR, ADVOCATE FOR R2 SRI.O.MAHESH, ADVOCATE FOR R5 R1- SERVED & UNREPRESENTED V/O/D 17/3/2020 NOTICE TO R3 IS DISPENSED WITH)

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THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:26.11.2014 PASSED IN MVC NO.641/2004 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE, ADDITIONAL MACT, UDUPI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

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ORAL JUDGMENT

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Aggrieved by the order passed in M.V.C.No.641/2004 dated 26.11.2014 by the Additional Senior Civil Judge & Additional MACT, Udupi, the appellant/claimant is before this Court.

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The claim petition is filed by the appellant/claimant under Section 166 of the Indian Motor Vehicles Act seeking

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compensation of an amount of Rs.2,20,000/- for the injuries sustained by the claimant in the accident that occurred on 19.02.2004. It is the case of the claimant that on 19.02.2004

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the claimant was travelling in an autorickshaw and when the said auto rickshaw came near Jamadikatte, Doddanagudde at about 8:45 a.m., a Maruthi car driven by its driver came from opposite direction in a rash and negligent manner and dashed against the autorickshaw. As a result, he sustained grievous injuries and immediately she was shifted to Gandhi hospital, Udupi, where she took treatment as inpatient and she was discharged on 24.02.2004. The injured is a minor and due to the accident, her little finger was amputated. As per the wound certificate, there are three simple injuries and one grievous injury.

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When it comes to liability, the Tribunal has held that as on the date of the accident, the vehicle is not insured and there is no valid insurance policy, as such the Insurance Company is not liable to pay the compensation and the owner alone is liable to pay the compensation as the accident had happened due to the rash and negligent driving of the offending vehicle.

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NC: 2025:KHC:9638 MFA No. 7311 of 2015

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When it comes to the compensation, basing on the evidence, the Tribunal had granted the compensation as per the table given below:

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	Heads		Com A	pensation warded
1.	Pain and sufferings	:	Rs.	15,000/-
2.	Loss of amenities in life	:	Rs.	25,000/-
3.	Medical expenses	:	Rs.	9,500/-
4.	Loss of education career	:	Rs.	10,000/-
5.	Loss of marriage prospectus and unhappiness	:	Rs.	10,000/-
6.	Conveyance, food and nourished food	:	Rs.	5,000/-
	TOTAL	:	Rs.	74,500/-

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Altogether, the Tribunal had granted compensation of an amount of Rs.74,500/-. Aggrieved thereby, the claimant is before this Court.

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Learned counsel appearing for the appellant/claimant submits that the owner of the offending vehicle had issued a cheque dated 11.07.2003 towards insurance policy and it was dishonoured for want of sufficient funds. The accident occurred on 19.02.2004 and the policy was cancelled on 25.08.2003. The dishonour of the cheque was not informed to the owner of the vehicle and the claimant being a third party, the Insurance

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Company is liable to pay the compensation. In that regard, learned counsel is relying on the judgment of the Hon'ble Apex Court in the case of Oriental Insurance Co. Ltd. Vs. Inderjit

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Kaur¹ . Relying on this judgment, it is submitted that the Insurance Company is liable to pay the compensation and the Tribunal had exonerated the Insurance Company.

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Coming to the enhancement of compensation, it is submitted that when the girl is aged about 9 years and her little finger is amputated which would have an impact on her life, the Tribunal had granted only an amount of Rs.15,000/- towards pain and sufferings and towards loss of future income, no amount was granted. Even under all other heads also, the compensation that is granted by the Tribunal is on the lower side. She had relied on the judgment of the Hon'ble Apex Court

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in the case of V.Mekala Vs. M. Malathi and Another² and judgment of the Co-ordinate Bench of this Court in MFA.No.4396/2016 c/w MFA.No.3208/2016 in case of The Managing Director, Bangalore Metropolitan Transport Corporation Vs. Master Azam Pasha . It is

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1 LAWS(SC)-1997-12-42

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2 (2014) 11 SCC 178

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submitted that the Hon'ble Apex Court and this Court had taken the notional income as an amount of Rs.10,000/- and an amount of Rs.7,000/- respectively. It is submitted that the Tribunal had not granted just and reasonable compensation and as such the compensation needs to be enhanced.

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Learned counsel appearing for respondent No.2/ Insurance Company submits that the judgment of the Hon'ble Apex Court in case of Oriental Insurance Co. Ltd.¹ referred supra do not apply to the facts and circumstances of this case. In fact, they have immediately informed about the dishonour and the cancellation of the policy to the first owner and later the vehicle was sold and the registration was changed. As such, there is no valid insurance policy as on the date of the accident and the owner of the vehicle is liable to pay the compensation and the Tribunal had rightly exonerated the Insurance Company from the liability.

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Though notice is served on respondent No.1 - owner of the vehicle, no vakalath is filed on his behalf.

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Having heard the learned counsels on either side, perused the entire material on record. First coming to the

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aspect of liability, the accident had taken place on 19.02.2004 and as the cheque was dishonoured, the policy was cancelled on 25.08.2003. The cheque was given by the person who is the first owner. Thereafter, it was sold and by that time, the cheque was dishonoured and according to the Insurance Company, it was already informed to the original owner. It is the contention of the learned counsel for the claimant that it was not communicated to the second owner and as such, the petitioner being the third party, the Insurance Company is liable to pay the compensation. This Court is not able to accept the said contention and the judgment of the Hon'ble Apex Court in the case of Oriental Insurance Co. Ltd.¹ referred supra do not apply to the facts and circumstances of this case. In that case, in between the dishonour of the cheque and intimation to the owner of the vehicle, the accident has occurred and in this case, the facts are totally different and the Tribunal had rightly held that the Insurance Company is not liable to pay the compensation and the owner alone is liable to pay the compensation. On that count, the order needs no interference.

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Coming to the quantum of compensation, considering that the girl of 9 years had met with an accident and that her

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little finger was amputated, towards pain and sufferings , this Court is granting an amount of Rs.40,000/- . Considering the injuries, an amount of Rs.30,000/- is granted towards loss of

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amenities in life . Towards medical expenses, the Tribunal had granted an amount of Rs.9,500/-. This Court do not find any reason to interfere with the same. Coming to the loss of education and loss of marriage prospectus, an amount of Rs.10,000/- each was granted. On that count also, this Court is not interfering. Coming to the head of conveyance, food and nourishment , this Court is granting an amount of Rs.10,000/- . Towards loss of income to the parents no amount was granted by the Tribunal. Hence, this Court is granting an amount of Rs.8000/- towards loss of income to the parents . Coming to the loss of future earning, the Tribunal had not granted any amount. This accident had taken place in the year 2004, considering the notional income at Rs.4,000/-, the disability to the limb is 30% and disability to the whole body comes to 10% and an amount of Rs.86,400/- (Rs.4,000x12x18x10/100) is granted towards loss of future income .

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In the light of the law laid down by the Hon'ble Supreme Court in the case of V.MEKALA vs. M. MALATHI AND ANOTHER³ , the claimant is entitled for an amount of

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Rs.10,000/- towards legal expenses .

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The claimant is therefore, entitled to the

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compensation under the following heads:

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	Heads		Com Aw T	pensation arded by ribunal	Compensation Awarded by this Court
1.	Pain and sufferings	:	Rs.	15,000/-	40,000/-
2.	Loss of amenities in life	:	Rs.	25,000/-	30,000/-
3.	Medical expenses	:	Rs.	9,500/-	9,500/-
4.	Loss of education career	:	Rs.	10,000/-	10,000/-
5.	Loss of marriage prospectus and unhappiness	:	Rs.	10,000/-	10,000/-
6.	Conveyance, food and nourished food	:	Rs.	5,000/-	10,000/-
7.	Loss of future earning (Rs.4,000x12x18x10/100)	:	Rs.	00/-	86,400/-
8.	Loss of income to the parents	:	Rs.	00/-	8,000/-
9.	Legal expenses	:	Rs.	00/-	10,000/-
	TOTAL	:	Rs.	74,500/-	2,13,900/-
	Enhancement	:	Rs.	1,3	9,400/-

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Accordingly, the appeal of the claimant is partly

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allowed .

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3 (2014) 11 SCC 178

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NC: 2025:KHC:9638 MFA No. 7311 of 2015

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i. The compensation is enhanced from an amount of Rs.74,500/- to Rs.2,13,900/- .

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ii. Respondent No.1 - owner of the vehicle is liable to pay the compensation.

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iii. The enhanced amount shall carry interest at 6% per annum from the date of petition till the date of realization.

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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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MEG

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List No.: 1 Sl No.: 22

Viona Gomes v. Heremane Sunil D Souza

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Viona Gomes v. Heremane Sunil D Souza

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