IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE S.G.PANDIT M.F.A.No.9134/2015 [MV] BETWEEN:
ANGAPPA @ ANGAMUTTHU S/O MADAPPA, AGED ABOUT 37 YEARS, R/AT PUDU RAMAPURA, RAMAPURA HOBLI, KOLLEGAL TALUK, CHAMARAJNAGAR-01.
... APPELLANT (BY SRI. MAHADEVA SWAMY P, ADV.) AND:
1. R. PARI S/O S.M. RAMASWAMY, MESSER’S SACHIN MOTOR ROAD WAYS, WARD NO.6, CHANDAPURA MAIN ROAD, NEAR PETROL BUNK, ANEKAL, BANGALORE-12.
2. THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO. LTD., J.L.B. ROAD, MYSORE-23.
… RESPONDENTS (BY SRI. A M VENKATESH, ADV. FOR R2) R1-SERVICE OF NOTICE H/S V/O DT:03.07.2019) THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 29.06.2015 PASSED IN MVC NO.357/2013 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC., KOLLEGAL, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS M.F.A COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T The appellant/claimant is in appeal not being satisfied with the quantum of compensation awarded under the judgment and award dated 29.06.2015 passed in MVC No.357/2013 on the file of Senior Civil Judge and JMFC, Kollegal.
2. The claim petition was filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation for the injuries suffered in a Road Traffic Accident. It is stated that on 11.09.2013 when the claimant was proceeding as pillion rider in Scooter bearing Reg.No.KA-05-HK-6876, at that time a bus bearing Reg.No.KA 51 A 4215 came from Bandalli side from opposite direction in a rash, negligent manner and dashed to the Scooter, due to which the claimant fell down and suffered injuries. It is stated that the claimant was earning Rs.20,000/- per month by doing mason work and was aged 33 years as on the date of accident. He was inpatient for 19 days on two intervals.
3. On issuance of summons, the 2nd respondent – Insurance Company appeared before the Tribunal and filed its objection denying the petition averments. Further it was contended that the accident occurred solely due to the negligence of the rider of the Scooter. The claimant examined himself as PW.2 and also examined the Doctors as PWs.3 and 4, apart from marking Exs.P1 to P49. The Tribunal based on the documents available on record awarded total compensation of Rs.3,77,670/- with interest at 6% p.a.
from the date of petition till the date of realization on the following heads :-
a. Pain and suffering 40,000/-
b. Medical expenses 1,70,470/-
c. Food Nourishment and conveyance 10,000/-
d. Loss of earning during laid up period 12,000/-
Not being satisfied with the quantum of compensation awarded by the Tribunal, the appellant is before this Court in this appeal.
4. Heard the learned counsel for the appellant and learned counsel for the 2nd respondent – Insurance Company. Perused the entire material on record.
5. The learned counsel for the appellant would submit that the Tribunal erred in assessing the notional income of the claimant at Rs.6,000/- per month. He submits that he was working as a mason and earning Rs.20,000/- per month. But the Tribunal without properly appreciating the evidence has erroneously taken the monthly income of Rs.6,000/- per month, while awarding the compensation. The Tribunal has saddled the liability on the 1st respondent – owner on the ground that there is violation of route permit. The learned counsel for the appellant relied upon the decision of the Hon’ble Supreme Court in the case of AMRIT PAUL SINGH AND ANOTHER Vs. TATA (AIG) GENERAL INSURANCE CO. LTD., AND OTHERS reported in (2018) 7 SCC 558 and submits that it is a case of pay and recovery and prays for direction to the insurer to pay in the first instance with liberty to recover the same from the 1st respondent – owner.
6. Per contra, the learned counsel for the 2nd respondent – Insurance Company submits that the Tribunal has awarded just compensation which requires no interference. Further he submits that as the Tribunal has found that there is violation of route permit, the Tribunal rightly saddled the liability on 1st respondent – owner.
7. Having heard the learned counsels for the parties and on perusal of the material on record, the points that arise for consideration is as to a. Whether the Tribunal is justified in saddling the liability on the 1st respondent – owner ?
b. Whether the income assessed by the Tribunal at Rs.6,000/- per month is just and proper ?
The above points are answered in the negative for the following reasons :
The occurrence of the accident on 11.09.2013 involving Scooter bearing Reg.No.KA-05-HK-6876 and KSRTC Bus bearing Reg.No.KA-51-A-4215, and the accidental injuries suffered by the claimant are not in dispute in this appeal. The claimant’s appeal is for enhancement of compensation. The Tribunal based on the material placed on record found that there is violation of permit conditions. The offending vehicle had permit to ply from Bellary to Mangaluru, whereas the accident had taken place at Bandalli Main Road, for which place the offending vehicle had no permit to ply. The respondent – Insurance Company examined the officer from the RTO as RW.1, in support of their contention. Based on the evidence of RW.1 the Tribunal found that there is violation of permit conditions. The Hon’ble Apex Court in the case of AMRIT PAUL cited supra has held at paragraph 24 as follows :-
“24. In the case at hand, it is clearly demonstrable from the materials brought on record that the vehicle at the time of the accident did not have a permit. The appellants had taken the stand that the vehicle was not involved in the accident. That apart, they had not stated whether the vehicle had temporary permit or any other kind of permit. The exceptions that have been carved out under Section 66 of the Act, needless to emphasise, are to be pleaded and proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental statutory infraction. We are disposed to think so in view of the series of exceptions carved out in Section 66. The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in Swaran Singh and Lakhmi Chand in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the "Tripitaka", that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the tribunal as well as the High Court had directed the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the principles stated in Swaran Singh and other cases pertaining to pay and recover principle.”
If there is violation of permit conditions, the above decision would require the insurer to pay compensation in the first instance with liberty to recover the same from the owner. Following the said decision the insurer is directed to pay compensation at the first instance with liberty to recover the same from the 1st respondent – owner. The claimant states that he was working as mason, earning Rs.20,000/- per month, but in absence of any documents to indicate the exact income, the notional income will have to be assessed. This Court and Lok Adalath while settling the accident claims of the year 2013 would normally take notional income of Rs.8,000/- per month. In the present case, it would be appropriate to take the notional income at Rs.8,000/- per month. Thus the claimant would be entitled for the following enhanced compensation:-
The compensation awarded on the other heads remains undisturbed.
8. Accordingly, the appeal is allowed in part. The impugned judgment and award is modified to the above extent and the claimant would be entitled to enhanced compensation in a sum of Rs.4,20,070/- as against Rs.3,77,670/- awarded by the Tribunal with interest at 6% p.a. from the date of petition till the date of realization.
Sd/- JUDGE NG* CT:bms