IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR.JUSTICE S.G.PANDIT M.F.A.No.6072/2013 [MV] BETWEEN :
ARUN KUMAR D., S/O Y.DORAIRAJ AGED ABOUT 44 YEARS R/AT NO.63, 2ND CROSS HENNUR ROAD, 3RD STAGE PILLANNA GARDEN, OPP. ANSAR MOSQUE BANGALORE-560084 ...APPELLANT (BY SRI K.V.NAIK, ADV.) AND :
1. Mr. SYED JAKIR S/O SYED MUSTHAF NO.126, 1ST MAIN, 5TH BLOCK HILALNAGAR, H.B.R. LAYOUT K.K. HALLI, BANGALORE-560043 2. HDFC ERGO GENERAL INSURANCE CO. LTD., UNIT NO.108-III, 1ST FLOOR, H.M. GENEVA HOUSE, NO.14, CUNNINGHAM ROAD BANGALORE-560052 BY ITS MANAGER …RESPONDENTS (BY SRI O.MAHESH, ADV. FOR R-2; R-1 SERVED.) THIS M.F.A. IS FILED UNDER SECTION 173(1) OF M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED 10.08.2012 PASSED IN MVC NO.6344/2010 ON THE FILE OF THE MEMBER, PRINCIPAL MACT, CHIEF JUDGE, COURT OF SMALL CAUSES, BANGALORE, 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 claimant is before this Court in this appeal not being satisfied with the quantum of compensation and also aggrieved by saddling of liability on respondent No.1- owner instead of 2nd respondent-insurer under judgment and award dated 10.8.2012 in MVC No.6344/2010 on the file of the Prl. MACT & Chief Judge, Court of Small Causes, Bangalore.
2. The claimant filed claim petition under Section 166 of M.V.Act claiming compensation for the accidental injuries sustained in a motor vehicle accident. It is stated that on 14.5.2010 when the claimant was proceeding on a Scooter bearing No.KA-03-K-3912, a mini lorry bearing Reg. No.KA-19-5429 came in a rash and negligent manner and dashed against the Scooter due to which the claimant sustained grievous injuries. Immediately he was shifted to Bowring Hospital and thereafter to Rajiv Gandhi Hospital and to Sanjay Gandhi Hospital and later to St. Marthas Hospital. It is stated that the claimant was working as an Operator in a Casting Foundry getting salary of Rs.10,000/- per month.
3. On issuance of notice, the insurance company appeared and filed its objections denying the claim petition averments. It also denied the negligence attributed to the driver of the lorry, but admitted the issuance of policy. It is also contended that the driver of the lorry had no valid and effective driving licence.
4. The claimant examined himself as PW-1 and also examined PW-2 Doctor and PW-3 Technician of Bhagavan Mahaveer Jain Hospital. PW-4 is the Doctor from Bowring Hospital. He got marked Ex.P1 to P26.
5. The respondent-insurance company also examined its Assistant Manager as RW-1 and Second Division Assistant RW-2 apart from marking Exs.R1 to R6.
6. The Tribunal analyzing the material on record awarded total compensation of Rs.5,56,472/- with interest @ 6% p.a. from the date of petition till realization on the following heads:
6. Loss of earnings on account of Disability 1,51,200 7. Future medical expenditure 15,000 Total 5,56,472 7. The claimant not being satisfied with the quantum of compensation is before this Court in this appeal.
8. Heard the learned counsel for the appellant as well as learned counsel for the respondent-insurance company and perused the records.
9. Learned counsel for the appellant submits that the compensation awarded by the Tribunal is on the lower side. He submits that the Tribunal has assessed Rs.4,500/- per month as income of the claimant, whereas he was earning more than Rs.10,000/- as Operator in a Casting Foundry. Further, he submits that the claimant was an inpatient for 17 days and he has undergone surgery. The Doctor has opined that the claimant suffered 24% disability to the whole body, whereas the Tribunal has taken 20% as whole body disability. The compensation awarded on various heads is on the lower side compared to injuries suffered and treatment taken.
10. Learned counsel for the appellant further submits that the Tribunal committed an error in saddling the liability on respondent No.1-owner of the offending vehicle on the ground that the driver of the mini lorry had no valid driving licence. He submits that Ex.R6 is the Driving Licence extract produced by the respondent- insurance company which indicates that the driver of the mini lorry had licence to drive LMV non transport vehicle which was valid till 29.6.2020. Licence to drive transport vehicle had expired on 16.2.2010. Therefore, when the driver of the offending vehicle had the licence to drive LMV, the liability has to be saddled on respondent No.2- insurance company as per the decision of the Hon’ble Apex Court in the case of Mukund Dewangan Vs Oriental Insurance Company Limited reported in (2017)14 SCC 663. Thus, he prays for allowing the appeal.
11. Per contra, learned counsel for the respondent- insurance company submits that the compensation awarded by the Tribunal is just compensation which requires no interference. Further, the learned counsel submits that the Doctor has opined that the claimant has suffered 24% whole body disability. The disability assessed by the Tribunal at 20% is on the higher side. It is his submission that the Tribunal ought to have taken 1/3rd of the disability assessed by the Doctor. Thus, he prays for dismissal of the appeal.
12. The accident is of the year 2010. The accident involving vehicles bearing No.KA-03-K-3912 and KA-19- 5429 and the accidental injuries suffered by the claimant are not in disputed in this appeal. The claimant’s appeal is for enhancement of compensation and to shift the liability on the 2nd respondent-insurer. The claimant stated that he was working as an Operator in Casting Foundry earning Rs.10,000/- per month. In support of his contention that he was earning Rs.10,000/- per month, he has produced salary certificate at Ex.P13 which is signed by one Sri.Amrutha Raj, Proprietor. But the said Proprietor was not examined before the Tribunal. No corroborative evidence in support of Ex.P13 is placed on record. Therefore, the Tribunal has rightly assessed the income of the claimant notionally. But notional income taken at Rs.4,500/- per month is on the lower side. This Court and Lok Adalaths while settling the accident claims of the year 2010, would normally take the notional income at Rs.5,500/- per month.
13. In the instant case, in the absence of any acceptable material to indicate the exact income of the claimant, it would be appropriate to notionally assess the income of the claimant at Rs.5,500/- per month. The claimant has suffered injuries to his right arm shoulder, elbow region and amputation of right thumb. PW-4 Doctor has opined that the claimant has suffered 24% whole body disability. The Tribunal has taken the whole body disability at 20%. Looking into the evidence of PW-4 Doctor and the medical records, the disability assessed by the Tribunal needs no interference. The contention that the Tribunal ought to have taken 1/3rd of the disability stated by the Doctor cannot be accepted in the present appeal in the absence of the appeal by the insurer.
14. Ex.R6 is the driving licence extract of the driver of the offending vehicle i.e., Mini Lorry. Ex.R6 indicates that the driver of the offending vehicle had LMV non transport licence in force as on the date of the accident. But he had no transport endorsement on the same. The Hon’ble Apex Court in Mukund Dewangan’s case, supra, has held that a person having LMV non transport licence could also drive transport vehicle of the said category. In view of the decision of the Apex Court in Mukund Dewangan’s case, the liability fastened on respondent No.1-owner is shifted to respondent No.2- insurance company. The insurance company is liable to indemnify respondent No.1-owner and is liable to pay compensation.
15. As the income of the claimant is assessed at Rs.5,500/- per month, the claimant would be entitled for enhancement of compensation under the head of loss of earning on account of disability as follows:
Rs.5,500 x 12 x 14 x 20/100 = Rs.1,84,800/-
6. Loss of earnings on account of Disability 1,84,800 7. Future medical expenditure 15,000 8. Loss of amenities 20,000 Total 6,15,072 Thus, the claimant would be entitled for total compensation of Rs.6,15,072/- as against Rs.5,56,472/- Awarded by the Tribunal with interest @ 6% p.a. from the date of petition till realization. The insurer is directed to deposit the compensation amount before the Tribunal within six weeks from today.
The appeal is allowed in part. The judgment and award is modified to the above extent.
Dvr:
Sd/- JUDGE