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2019 DIGILAW 1430 (KAR)

Minor Lingamurthy v. Ramjansab

2019-06-25

P.G.M.PATIL

body2019
JUDGMENT : P.G.M. Patil, J. The claimant being aggrieved by the judgment and award dated 07.01.2017 passed in MVC No.117/2014 by the Motor Accident Claims Tribunal-II, Ballari has filed this appeal 2. The case of the claimant before the Tribunal is that on 20.02.2013 at about 9.30 a.m., the minor petitioner was sitting for nature call on the proper side of the road at Dammur Village, Ballari Taluk, at that time, respondent No.1 being the driver cum owner of TATA Ace bearing Registration No.Ka-35/TR-5443 drove the same in a high speed and in a rash and negligent manner and dashed against the minor petitioner, due to which, the petitioner fell down and sustained grievous injuries over head, both pelvis and over left shoulder. He was shifted to Danamma Hospital, Ballari, where he has undergone operation and he was impatient for 15 days. It is stated that the minor petitioner was strong, hale and healthy and he was very clever boy and used to participate in extra curricular activities like games, quiz etc. Now due to injuries, he is not able to take part in the activities. Therefore, the claimant filed the claim petition claiming compensation of Rs. 7,00,000/- against the owner and insurer of the offending vehicle. 3. In pursuance of notice, respondents No.1 and 2 appeared before the Tribunal and filed written statement. Respondent No.1 denied the allegations made in the claim petition that the driver was having valid and effective driving licence and vehicle was insured with respondent No.2. Therefore, in case of any liability, it may be saddled against respondent No.2. Respondent No.2 filed written statement denying the averments in the claim petition and further contended that the offending vehicle was insured with him. But the driver of the offending vehicle was holding licence to drive LMV (NT) vehicle and was not authorized to drive transport vehicle. Therefore, there is breach of policy condition and he is not liable to pay compensation. 4. On the basis of the pleadings of the parties, the Tribunal framed issues. 5. In support of his claim petition, the claimant and one witness was examined and he has got marked 63 documents at Exs.P1 to P63. Respondent No.2 has examined its official as RW1 and got marked 4 documents at Exs.R1 to R4. 6. 4. On the basis of the pleadings of the parties, the Tribunal framed issues. 5. In support of his claim petition, the claimant and one witness was examined and he has got marked 63 documents at Exs.P1 to P63. Respondent No.2 has examined its official as RW1 and got marked 4 documents at Exs.R1 to R4. 6. The learned member of the Tribunal after hearing both the parties, has passed the impugned judgment awarding compensation of Rs. 6,99,950/- with interest at 7% p.a. from the date of petition till realization. Respondent No.1-owner of the vehicle was directed to deposit the compensation amount. 7. Being aggrieved by the impugned judgment, the claimant has filed this appeal on the ground that the Tribunal failed to note that the driver had the licence to drive the vehicle involved in the accident and he was not disqualified from holding licence. Therefore, the Tribunal has erred in fixing the liability on the owner instead of the insurer. 8. Heard the learned counsel for the appellant and respondent No.2. 9. A short question which arise for consideration in this appeal before this Court is, as to whether the appellant/claimant has made out grounds to saddle the liability to pay compensation on the insurer. 10. The learned counsel for the appellant/claimant submitted that in view of the judgment of the Hon'ble Supreme Court in the case of Mukund Dewangan v. Oriental Insurance Company Limited, (2017) AIR SC 3668, there is no breach of policy condition in the present case. 11. Admittedly, the driver was holding valid and effective driving licence to drive LMV (NT) vehicle and in view of the said decision, he need not obtain special endorsement for the purpose of driving LMV Transport vehicle. Therefore the liability to pay compensation has to be saddled against the insurer along with the owner of the offending vehicle. 12. The learned counsel for the respondent insurer submitted that the compensation awarded by the Tribunal under the head of loss of future prospects is not admissible and the same may be reduced. 13. The learned counsel further submitted that as there was no liability saddled on the insurer, he has not filed any appeal and therefore the insurer is entitled to be heard in respect of the quantum of compensation. 14. Admittedly, the claimant was minor aged 4 years at the time of filing the claim petition. 13. The learned counsel further submitted that as there was no liability saddled on the insurer, he has not filed any appeal and therefore the insurer is entitled to be heard in respect of the quantum of compensation. 14. Admittedly, the claimant was minor aged 4 years at the time of filing the claim petition. The Tribunal has considered the notional income of the claimant as Rs. 75/- per day and has applied multiplier 17 and has awarded compensation towards loss of future earning capacity by considering the permanent disability of 30% of the whole body. Further the Tribunal has also awarded a sum of Rs. 4,25,000/- towards other future prospects. Since the claimant is a minor, the Tribunal ought to have considered awarding compensation on the basis of notional income as provided in the second schedule to the Motor Vehicles Act, 1988 and assessment of compensation should have been done on the basis of the judgment in the case of Mallikarjun V. Divisional Manager, The National Insurance Company Limited and another, (2013) ACJ 2445 AIR. 15. Under these circumstances, just compensation to the claimant is reassessed as per the guidelines in the case of Mallikarjun stated supra. 16. In the said case, the Hon'ble Supreme Court has observed in paragraph 12 is as follows: "12. Though it is difficult to have an accurate assessment of the compensation in the case of children suffering disability on account of 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 towards treatment, attendant, etc., should be, if the disability is above 10 per cent and up to 30 per cent to the whole body, Rs.3,00,000; up to 60 per cent, Rs.4,00,000; up to 90 per cent, Rs.5,00,000 and above 90 per cent, it should be Rs.6,00,000. For permanent disability up to 10 per cent, it should be Rs.1,00,000, unless there are exceptional circumstances to take a difference yardstick. In the instant case, the disability is to the tune of 18 per cent. Appellant had a longer period of hospitalization for about two months causing also inconvenience and loss of earnings to the parents. For permanent disability up to 10 per cent, it should be Rs.1,00,000, unless there are exceptional circumstances to take a difference yardstick. In the instant case, the disability is to the tune of 18 per cent. Appellant had a longer period of hospitalization for about two months causing also inconvenience and loss of earnings to the parents. The appellant, hence, would be entitled to get the compensation as follows: HEAD COMPENSATION Pain and suffering already undergone and to be suffered in future, mental and physical shock, hardship, Inconvenience and discomfort, etc., and loss of amenities in life on account of permanent disability Rs.3,00,000 Discomfort, inconvenience and loss of Earnings to the parents during the Period of hospitalization Rs. 25,000 Medical and incidental expenses during the period of hospitalization for 58 days Rs. 25,000 Future medical expenses for Correction of the mal-union of fracture and incidental expenses for such treatment Rs. 25,000 Total 3,75,000 17. In the present case, it is made out that the petitioner is suffering from permanent disability of 30% of the whole body as observed by the Tribunal. 18. The claimant has produced Ex.P8 IQ assessment report issued by PW2 Dr. Premalatha. The evidence of PW2 and this report goes to show that the minor claimant has obtained IQ of 10 out of 80, which signifies mildly below average level in intellectual abilities. PW2 Dr. Premalatha has also deposed that the IQ of the claimant is below average level in intellectual abilities. As per Ex.P6-wound certificate, the claimant had sustained Type II fracture of deep with small bones fragment seen anteriorly on prevertebral space and slightly anterior displacement of pelvis and also had sustained cut lacerated wound over right posterior parietal region for which he was operated. 19. Under these circumstances, the permanent disability of the petitioner as considered by the Tribunal appears to be proper and compensation has to be awarded to the claimant considering the permanent disability of 30% of the whole body. 20. Under these circumstances, the following just compensation is awarded in terms of the principles stated in the case of Mallikarjun stated supra. Towards pain and sufferings Rs. 3,00,000.00 Loss of amenities in life Rs. 25,000.00 Medical expenses Rs. 57,000.00 Future medical expenses Rs. 10,000.00 Total Rs. 3,92,000.00 21. Thus the claimant is entitled for total compensation of Rs. 3,92,000/- with interest at 7% p.a. Thereby compensation is reduced from Rs. Towards pain and sufferings Rs. 3,00,000.00 Loss of amenities in life Rs. 25,000.00 Medical expenses Rs. 57,000.00 Future medical expenses Rs. 10,000.00 Total Rs. 3,92,000.00 21. Thus the claimant is entitled for total compensation of Rs. 3,92,000/- with interest at 7% p.a. Thereby compensation is reduced from Rs. 6,99,950/- to Rs. 3,92,000/-. In the result, this Court proceed to pass the following: ORDER The appeal is allowed in part. The judgment and awarded dated 07.01.2017 passed in MVC.No.117/2014 by the MACT II, Ballari so far as exonerating the insurer and saddling liability against the owner is set aside. It is ordered that both respondent Nos. 1 and 2 are liable to pay compensation and respondent No.2 being the insurer is directed to deposit compensation amount before the Tribunal within a period of eight weeks. On reassessment, the claimant is awarded compensation of Rs. 3,92,000/- with interest at the rate of 7% p.a. from the date of petition till its realization.