U. Prathap Reddy and Others vs K. Lokesh and Others

B. Veerappa, J.—1. MFA No. 25650/2011 is filed by the claimant for enhancement of compensation awarded by the Tribunal. MFA No. 23940/2011 is filed by the insurance company for reduction of the compensation and its liability to pay the compensation.

Both these appeals are filed against the judgment and award dated 31.1.2011 passed in MVC No. 510/2007 on the file of the Member, MACT�V, Bellary awarding compensation of Rs. 4,45,000/- with interest at 6% per annum from the date of petition till realisation.

It is the case of the claimant that on 2.4.2007 at about 3.30 p.m. when the claimant was proceeding on his bicycle slowly and cautiously on the proper side of the road, the tractor bearing registration No. KA-35/TA 2727 and Trally No. KA-35/T-3543 driven by its driver in rash and negligent manner, near Painayakanahalli on Kamalapura road and dashed against him as a result of which, he fell down and sustained injuries all over his body. Immediately, he was shifted to 100 Bed Hospital, Hospet and on the same day, he was shifted to VIMS Hospital, Bellary for better treatment. On the advise of the doctors at VIMS Hospital, he was shifted to NIMHANS, Bengaluru. Later on he was admitted to Victoria Hospital, Bengaluru as inpatient for a period of 8 days. Even today, the minor is under medical care and he has to undergo pain, agony and permanent disability throughout his life. According to him, he has spent an amount of Rs. 50,000/- towards medical expenses; Rs. 10,000/- towards travelling expenses and Rs. 25,000/- for follow up treatment. It is his further case that prior to the accident, he was hale and healthy, aged about 16 years and was a student studying in X Standard. He was also assisting his father in agricultural activities. Due to the accident, he has lost his future prospectus. Therefore, he sought for a compensation of Rs. 5,60,000/-.

The respondent/driver of the vehicle was placed ex-parte. Respondent Nos. 2 and 3/owner and the insurance company respectively has filed their written statement separately. The owner of the vehicle denied all the petition averments stating that the offending vehicle was insured with the insurance company and the policy coverage of it was in force as on the date of the accident and hence, the insurance company is liable to pay the compensation. The insurance company denied the entire petition averments by admitting that the policy was in force as on the date of the accident. It also contended that the compensation claimed by the claimant is exorbitant, etc.

Based on the pleadings, the Tribunal framed the following issues:

i) Whether the petitioner proves that, the accident dated 2.4.2007 was due to rash and negligent driving of Tractor driver bearing Regn. No. KA-35/TA 2727 and Trailer No. KA-35/T-3543 and that U. Prathap Reddy sustained grievous injuries?

ii) Whether the petitioner is entitled for compensation? If so, from whom and what extent?

iii) What Order or Award? The additional issue was deleted by the subsequent order.

In order to substantiate the claim, the father of the minor claimant examined as P.W. 1 and a doctor as P.W. 2 through Court Commissioner and marked the documents as Exs. P. 1 to 37. The Insurance Company got examined its Administrative Officer as R.W. 1 and marked Exs. R-1 to 7.

The Tribunal after considering the entire material evidence on record has recorded a finding that the accident occurred due to rash and negligent driving of the driver of the tractor bearing Regn. No. KA-35/TA 2727 whereby the claimant, who is minor, sustained grievous injuries. Accordingly, a sum of Rs. 4,45,000/- was awarded with 6% interest per annum from the date of petition till realisation. Hence, both these appeals are filed for enhancement and reduction as well as liability.

I have heard the learned Counsel for the parties to the lis.

Sri Y. Lakshmikanth Reddy, learned Counsel for the claimant contended that the Tribunal has erred in awarding a sum of Rs. 4,45,000/- when the claimant has suffered grievous injuries, who is a minor aged about 16 years; that the amount awarded by the Tribunal is too meager against the claim of Rs. 5,60,000/-. Therefore, the Tribunal without considering the material documents both oral and documentary evidence on record has proceeded to award the compensation, which is too meager and inadequate. Hence, he sought for enhancement by modifying the impugned judgment and award.

Per contra, Sri C.V. Angadi, learned Counsel for the Insurance Company appearing the appellant in the appeal i.e. MFA No. 23940/2011 contended that the driver of the tractor-trailer was authorised to drive only light motor vehicle (non transport category vehicle); the insurance company has got examined its witness in this regard; Ex. R-7 which is a driving licence extract is produced, but the Tribunal has erred in fixing the liability on the insurance company and hence, the insurance company is not liable to pay the compensation. He also contended that the P.W. 3, the doctor who examined the claimant has assessed his disability at 53% which is not for the whole body; the compensation of Rs. 3,50,000/- awarded towards pain and suffering, loss of amenities and expectation of life and the medical expenses is also on the higher side. Therefore, he sought to set aside the impugned judgment and award passed by the Tribunal.

I have given my thoughtful consideration to the arguments advanced by the learned Counsel for the parties and perused the entire material on record.

It is an undisputed fact that on 2.4.2007 at about 3.30 p.m. due to the rash and negligent driving of the driver of the tractor, the minor boy sustained grievous injuries and he was shifted to 100 Bed Hospital, Bellary and thereafter, to VIMS Hospital, Bellary. In turn, he was referred to the NIMHANS, Bengaluru and later he was admitted to Victoria Hospital, Bengaluru where he was treated as an inpatient for a period of 8 days.

The father of the minor claimant, who is examined as P.W. 1 has unequivocally stated on oath that his son has passed SSLC and he has produced Ex. P. 35 the marks card issued by the Karnataka Secondary Education Examination Board for having scored 433 marks out of 625 and has scored 62.52%. However, after the incident, he continued his education and he has produced Ex. P. 36 the marked card issued by the Vijaya Nagara Pre University College, Hospet discloses that the boy has scored 229 marks out of 600 in First Year PUC which clearly shows that due to the head injury, IQ level of the minor claimant has come down. The doctor, who examined the minor claimant, has stated that he is suffering from 53% disability for the cognitive functioning of the brain. Ex. P. 4 is the wound certificate issued by the Government Hospital, Hospet which discloses that the claimant sustained injury to the occipital area measuring 5 x 2 cms., with bleeding and parietal compound depressed fracture which is grievous in nature and hence, he was referred to NIMHANS, Bengaluru.

The material on record discloses that the injured was a minor aged about 16 years and he has to suffer the disability throughout his life. Exs. P. 35 and P. 36 discloses that before the accident he was quite brilliant and his IQ level and percentage was more and after the accident, he passed the First Year PUC with just pass. Therefore, it is clear that he has lost his memory in view of the accident. Taking into consideration the age of the minor, certain amount of guess-work as to how much he would be earning in future, if he had not met with the accident becomes inevitable. In this regard, the Division Bench of this Court in the case of Balakrishna N. Shetty and Others vs. B.K. Ibrahim and Others reported in , ILR 2003 Kar. 3801 has taken the income of the III year BDS student as Rs. 4,000/- per month for the accident which took place on 8.2.1989. In the present case, the accident occurred on 2.4.2007. Taking into consideration all the expenses, it would, hazarding a reasonable guess, holding that the minor claimant''s income, who is a student, would be not less than Rs. 1,666/- per month. Per year it comes to Rs. 19,992/-.

Taking into consideration the law declared by the Hon''ble Supreme Court in the case of Sarla Verma and Others vs. Delhi Transport Corporation and Another reported in , (2009) 6 SCC 121 and the age of the minor claimant, it would be appropriate to take the multiplier of ''18''. Hence the loss of disability would come to Rs. 19,992 x 18 = Rs. 3,59,856/- rounded of to Rs. 3,60,000/-.

In so far as the medical expenses is concerned, P.W. 1 as well as the doctor examined as P.W. 2 has stated that certain amount has to be spent for future medical expenses. Taking into consideration the entire material on record, the Tribunal awarded a sum of Rs. 75,000/- towards medical and future medical expenses. Hence, it would be appropriate to award another sum of Rs. 10,000/- towards the said head.

Towards food, nutrition and attendant charges, conveyance, the Tribunal has awarded a sum of Rs. 20,000/- which is meager. Hence, another sum of Rs. 10,000/- is awarded.

In total, the claimant is entitled to a sum of Rs. 4,75,000/- (Rs. 3,60,000/- + 85,000/- + 30,000/- = Rs. 4,75,000/-) less Rs. 4,45,000/- compensation awarded by the Tribunal. The Total enhancement would be Rs. 30,000/-.

In so far as the contention raised by the Insurance Company that it is not liable to pay the compensation awarded since the driver of the tractor was authorised to drive only the light motor vehicle (non-transport) and not the Tractor-Trailer. The said issue is no longer res-integra in view of the law declared by the Apex Court in the case of S. Iyyapan vs. United India Insurance Co., Ltd., reported in , 2013 ACJ 1944 wherein at para-19 it has been held that the Insurance Company may proceed against the insured for recovery of amount, if there is any violation of condition of insurance policy which reads as follows:

"19. In the instant case, admittedly the driver was holding a valid driving licence to drive light motor vehicle. There is no dispute that the motor vehicle in question, by which accident took place, was Mahindra maxicab. Merely because the driver did not get any endorsement in the driving licence to drive Mahindra maxicab, which is a light motor vehicle, the High Court has committed grave error of law in holding that the insurer is not liable to pay the compensation because the driver was not holding the licence to drive a commercial vehicle. The impugned judgment is, therefore, liable to be set aside."

In view of the same, the contention of the learned Counsel for the Insurance Company cannot be accepted.

In view of the aforesaid reasons, MFA No. 23940/2011 filed by the Insurance Company is dismissed and MFA No. 25650/2011 filed by the claimant is allowed in part modifying to the following extent:

In all the claimant is entitled to a sum of Rs. 30,000/- as enhanced compensation with interest 6% from the date of petition till the date of realisation.

However, it is made clear that the Insurance Company is at liberty to pay and recover from the owner in accordance with law.

The amount in deposit in MFA No. 23940/2011 is directed to be transmitted to the concerned Tribunal forthwith.