Sri TajuddIn Khan Vs. the Oriental Insurance Company Limited and anr. - Court Judgment

Excerpt:
- [ k.n. keshavanarayana, j.] negotiable instruments act, 1881 - section 138 - offence under - complaint - judgment of conviction -appealed against to the court of sessions and subsequently made over to the presiding officer, fast track court-v, mysore - setting aside of judgment of conviction -appealed there against before the high court -interpretation made by the learned fast track judge with regard to the amendment brought to clause (b) of proviso to section 138 of the act is in the nature substitution and the amendment is deemed to have been brought into force from the inception of the act - consideration of - held, the object behind issuance of notice under clause (b) proviso to section 138 is to give intimation to the drawer of the cheque about dishonoring of the cheque and to give him an opportunity to pay the money covered under the cheque and thereby to avoid the criminal prosecution being launched against him. therefore, issuance of notice as required by clause (b) is mandatory. in this background, it is necessary to find out as to whether the amendment brought to clause (b) of the proviso to section 138 of the act with effect from 06.02.2003 by act no.55/2002 has retrospective effect. by this amendment brought into force from 06.02.2003, the requirement of issuing notice on the part of the drawer of the cheque within 15 days was substituted by 30 days. - no doubt, the words '15 days' occurring in clause (b) has been substituted by 30 days by the amendment. the question is as to whether by virtue of this amendment, the complainant could have issued a notice on 08.02.2003 though he had lost his right to issue such notice of demand on or after 29.01.2003. - there is nothing to indicate that the amendment brought to clause (b) of proviso to section 138 of the act has retrospective effect. merely because the said amendment was in the nature of substitution, it cannot have a retrospective effect, morose, when it relates to initiation of penal action. therefore, the high court is of the opinion that the amendment brought to clause (b) of the proviso to section 138 cannot be deemed to be in force from the inception and the amendment brought into effect subsequently cannot create a fresh cause-of-action for the complainant to issue notice and lodge a complaint based on such notice. - further held, the complainant received information from her banker on 13.01.2003 about the return of the cheque, cause-of-action for issue of notice began to run. as per the law that existed on that day, she was required to issue notice, within 15 days, which expired on 28.01.2003. on account of the inaction on the part of the complainant in not issuing notice of demand within 15 days from the date of the receipt of the information from her banker about the return of the cheque, she had lost her right to file a complaint for an offence under section 138 of the act, as there was no demand in writing made by her to the drawer of the cheque as required by law. - therefore, the complainant had no right to present a complaint. the amendment brought into force from 06.02.2003 did not give her a right to issue a notice of demand in respect of dishonoring of the cheque on 09.01.2003, which was intimated to her on 13.01.2003. therefore, the complaint lodged was defective and the learned magistrate could not have taken cognizance of the offence alleged. -judgment of acquittal passed by the fast track court is justified - negotiable instruments act, 1881 (act no. 55/2002 with effect from 6-2-2003) -clause (b) of proviso to section 138 -amendment by way of substitution - statutory provision -retrospective effect - discussed. (paras 13,14,15,16,20,21,22)n.k. patil, j.1. this appeal is directed against the judgment and award dated 26.09.2005 passed in mvc no. 6321/2003 on the file of ix additional judge, member mact-7, court of small causes, bangalore, (scch-7) (hereinafter referred to as 'tribunal' for brevity) on the ground that, the compensation of rs. 1,00,000/- awarded by the tribunal with interest at 6% per annum from the date of petition till the date of realization as against the claim of claimant for rs. 10,00,000/- is inadequate.2. the brief facts of the case are:the appellant claims to be aged about 37 years, working as driver of a lorry and getting salary of rs. 4,500/- p.m. be that as it may, that on 08.11.2003 at about 9.00 a.m. when the appellant was driving his lorry bearing registration no. ka. 04 7517 on tumkur madhugiri road, towards madhugiri near pbe bricks factory, arakere, another lorry bearing registration no. ap 16 tu 1465 came in a rash and negligent manner and dashed against his lorry as a result of which he sustained grievous injuries such as fracture of right clavicle, fracture avf bone, zygomatic fracture, fracture orbital wall both medical and lateral and eye injury. it is the case of the appellant that on account of the injuries sustained in the accident he has spent considerable amount towards conveyance, nourishing food, attendant charges and medical expenses. therefore, he filed a claim petition claiming compensation of rs. 10,00,000/- against the respondents. the said claim petition had come up before the tribunal and the tribunal in turn after hearing the learned counsel on both sides and after considering the oral and documentary evidence available on record, has allowed the claim petition of the appellant in part awarding compensation of rs. 1,00,000/-with interest at 6% per annum from the date of petition till the date of realisation. the appellant has presented this appeal on the ground that the compensation awarded by the tribunal is inadequate and it requires enhancement by modifying the judgment and award of the tribunal.3. we have heard the learned counsel appearing on both sides for considerable length of time.4. after careful perusal of the judgment and award of the tribunal and alter critical evaluation of the relevant material available on the file, what emerges is that the tribunal is justified in awarding rs. 5,000/-towards medical expenses and it does not call for interference.5. however the tribunal has erred in awarding only rs. 20,000/-towards pain and sufferings which is inadequate for the reason that the appellant was inpatient in the hospital for more than 5 days. having regard to the nature of injuries as stated supra and the pain any agony undergone by the appellant, we deem it fit to award rs. 50,000/- towards pain and sufferings as against rs. 20,000/- awarded by the tribunal.6. the tribunal has further committed grave error in not awarding compensation towards conveyance, nourishing food and attendant charges. it is not in dispute that the appellant was in the hospital for 5 days as inpatient. he might have spent reasonable amount towards conveyance, nourishing food and attendant charges. therefore we award rs. 10,000/-under the said head.7. the tribunal has erred in awarding only rs. 50,000/- towards loss of future income, assessing the income of the appellant at rs. 3,000/- p.m. which is in adequate for the reason that the appellant has stated that he was earning rs. 4,500/- p.m. and rs. 100/- per day as batta. keeping in view his age and occupation we can safely assess the income of the appellant at rs. 4,000/- p.m. as per the age of the appellant the multiplier applicable is 15 and the disability to the whole body is 10%. hence we re-assess the compensation towards loss of future income which comes to rs. 72,000/- (rs. 4,000/- 12 15 10%). accordingly we award the same.8. the tribunal has erred in awarding only rs. 15,000/- towards loss of earning during laid up period which is inadequate. we have assessed the income of the appellant at rs. 4,000/- p.m. as stated supra. therefore loss of earnings during laid up period for five months comes to rs. 20,000/-. we award the same.9. further the tribunal has erred in awarding only rs. 10,000/- towards loss of amenities in future life which is inadequate for the reason that the appellant was aged about 37 years working as driver and has a disability of 30% to his right eye. he was inpatient in the hospital for more than 5 days and also undergone a surgery. because of the disability the appellant is not in position to do his work effectively and efficiently to the satisfaction of his employer as he was doing prior to the accident. therefore we deem it fit to award rs. 20,000/- towards loss of amenities in future life as against rs. 10,000/-awarded by the tribunal.10. the tribunal has erred in not awarding compensation towards future medical expenses. it is not in dispute that the available material evidence on record shows that there is fracture of right clavicle, fracture avf bone, zygomatic fracture, fracture orbital wall both medical and lateral and eye injury. the doctor has assessed 30% disability to the right eye and the appellant is required to meet future medical expenses. taking these relevant factors into consideration we deem it fit to award rs. 10,000/-towards future medical expenses.11. in the facts and circumstances stated above, the instant appeal filed by the appellant is allowed in part. the judgment and award dated 26.09.2005 passed in mvc no. 6321/2003 on the file of ix additional judge, member mact-7, court of small causes, bangalore, (scch-7) is hereby modified. the break up is as under: i) towards pain and injury rs. 50,0007-ii) towards medical expenses. rs. 5,000/-iii) towards conveyance, nourishingfood and attendant charges rs. 10,000/-iv) towards loss of income duringlaid up period rs. 20,000/-v) towards loss of future income. rs. 72,000/-vi) towards loss of future amenities rs. 20,000/-vii) towards future medical expenses rs. 10,000/------------------total rs. 1,87,000/-=================the appellant is entitled for total compensation of rs. 1,87,000/- as against rs. 1,00,000/- awarded by the tribunal with interest at 6% p.a. from the date of petition on till the date of realization.the 1st respondent - insurance company is directed to deposit the enhanced compensation of rs. 487,000/- together with interest, within a period of four weeks from the date of receipt of copy of the judgment;out of the enhanced compensation of rs. 87,000/-, rs. 50,000/- with proportionate interest shall be invested in the name of the appellant in f.d. in any nationalized or scheduled bank for a period of 5 years and renewal for another 5 years. the appellant is entitled to withdraw periodical interest on the f.d.the remaining compensation of rs. 37,000/- with proportionate interest shall be released in favour of the appellant immediately on deposit by the insurance company.office is directed to draw the award, accordingly.