IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR M.F.A.NO.1185/2013 (MV) Between:
Obegowda, S/o.Narayanappa, Aged about 48 years, R/o 3rd Cross, Behind Government School, Guthalu, (Arakeswaranagar), Mandya City-571 401. ... Appellant (By Sri.L.Raja, Advocate) And:
1. Aslam Pasha, S/o.Nisar Ahmed, Aged about 38 years, Lorry Driver KA 01/A-4527, Muslim Block, Azad Nagar, Mandya City-571 401.
2. Mohammed Kowsar, 58 years, S/o.Sabjan Sab, Owner of Lorry, D.No.870/01, Azad Nagar, Mandya City-571 401.
3. The Branch Manager, New India Assurance Company Limited, 73, 1st Floor, Madhvesh Complex, Nazarbad Road, Mandya City-571 401. ... Respondents (By Sri.K.N.Srinivasa, Advocate for R3; R1-served; R2-served) This MFA is filed under Section 173(1) of MV Act against the judgment and award dated: 30.10.2012 passed in MVC No.270/2009 on the file of the Principal Civil Judge (Sr.Dn.), CJM, MACT, Mandya, partly allowing the claim petition for compensation and seeking enhancement of compensation.
This MFA coming on for Hearing, this day, the Court delivered the following:
JUDGMENT Heard the learned counsel for the appellant and the learned counsel for the respondent No.3 and perused the records.
2. This appeal is directed against the judgment and award rendered by the Tribunal in MVC No.270/2009 dated 30.10.2012, whereby it has awarded compensation in a sum of Rs.45,000/- with interest at 6% per annum from the date of petition till realization. The same has been incorporated in the operative portion of the judgment.
3. The facts of the case are that on 07.01.2009 at about 4.15 p.m. after loading the paddy in the lorry bearing registration No. KA-01-A-4527, the claimant and other persons who are employed as loaders were seated on the paddy bags and the said lorry proceeded from Javanahalli to Mandya and the driver of the lorry was driving the said lorry in a rash and negligent manner and when the said lorry came near B.Hatna village, the driver suddenly turned the lorry to the left side, as a result, the claimant fell down from the lorry to the road along with paddy bags. Due to the sudden fall, the claimant sustained injuries on both his knees and head, wrist portion and other parts of the body. Immediately, the injured – claimant was shifted to Mandya District Hospital in an auto and he was admitted as inpatient and x-ray examination was done which revealed fracture of left knee portion and left eye portion. The claimant took treatment as inpatient from 07.01.2009 till 13.01.2009. The claimant who was aged about 45 years at the time of the accident and working as a loader was the only source of income to his family.
Due to the accident he became permanently disabled and he is unable to work as loader and unloader and now he is feeling difficulty in earning and thereby suffered loss of future earning capacity. The first respondent in the claim petition being the driver of the offending vehicle, the second respondent being the owner of the said lorry and the third respondent being the insurer, are liable to pay compensation to him.
4. After service of notice, the first and second respondents have put in their appearance through their Counsel, but they did not file any written statement to resist the claim petition. But the third respondent has put appearance through its counsel and filed written statement denying the averments made in the claim petition and also the involvement of the offending vehicle causing injuries to the claimant. The offending lorry was insured with the third respondent and the insurance policy was in force as on the date of accident. These are all the contentions urged on the part of the respondent No.3 in their written statement and they sought for dismissal of the claim petition of the injured.
5. Based on the pleadings of the parties, the Tribunal framed three issues and gave its findings and awarded compensation in a sum of Rs.45,000/- with interest at 6% per annum and directed the third respondent – Insurance Co. to pay the same to the claimant.
6. The learned counsel for the appellant has taken me through the evidence of the injured claimant - P.W.1, who was working as a loader in the offending lorry said to be involved in the accident. The claimant, due to the accident, sustained grievous injuries on his knees, head, eye and left thigh and took treatment in Mandya District Hospital as inpatient for a period of seven days. The Tribunal has awarded compensation by taking the income at Rs.150/- per day, which is on the lower side. The claimant was working as a loader and after the accident he is not able to discharge his work as he was earlier discharging. These are all the contentions taken by the learned counsel for the appellant and seeking for intervention with the impugned judgment and award of the Tribunal and to award compensation suitably. The Tribunal has given findings that the first and second respondents have not filed any written statement to resist the claim petition and also they did not produce the driving licence. But the policy was valid and in force on the date of the accident. Therefore, liability has to be saddled on the third respondent. With these, the learned counsel for the appellant prays for allowing the appeal and awarding compensation suitably.
7. The learned counsel Sri. K.N.Srinivasa appearing for respondent No.3 has countered the arguments of the learned counsel for the appellant. He submits, there is no dispute with regard to occurrence of accident and that the claimant was working as a loader in the offending lorry involved in the accident. When the driver of the said lorry suddenly turned the lorry to the left side, the claimant fell down along with the paddy bags and sustained injuries. He took treatment for seven days for the injuries sustained by him as per Ex.P.4 – the wound certificate. P.W.2 even though has been examined on the part of the claimant to substantiate the case of the claimant, but the treated doctor has not been examined. The injuries were treated conservatively and he has not treated him for the fracture sustained to the left arm, but one Dr. Vidya Prasad has given treatment to him. But he could not secure the doctor in order to substantiate his case whether he had suffered permanent disability or not. However, the Tribunal has considered the evidence of P.W.1 and so also the evidence of P.W.2 and perused Exs. P.1 to P.20 and also the Insurance Policy – Ex.R.1 and perused the oral and documentary evidence and awarded compensation. The compensation awarded by the Tribunal is just and proper and it does not call for interference. With these, the learned counsel appearing for the respondent No.3 – Insurance Co., prays for dismissing the appeal and confirming the judgment and award of the Tribunal which is challenged in this appeal.
8. In the backdrop of the contentions taken by the learned counsel for the appellant and the counter arguments made by the learned counsel for the respondent No.3 – Insurance Co., it is relevant to state that the claimant - injured was working as a loader in the offending lorry which was involved in the accident and he suffered injuries in the accident and he has taken treatment as inpatient for a period of seven days in Mandya District Hospital and he has produced the wound certificate at Ex.P.4. The same reveals that due to the road traffic accident, he has sustained five injuries and injury No.5 is found to be grievous in nature. Ex.P.7 is the discharge card which reveals that the injured got admitted in Mandya District Hospital and took treatment for a period of seven days and he took treatment conservatively. The Tribunal has considered the evidence of P.W.1 and awarded compensation in respect of the injuries at Rs.20,000/-
which is very meager. In the absence of specific material to substantiate his income, the Tribunal has taken his income at Rs.150/- per day to calculate `loss of income during laid up period’ which is on the lower side. There is also no dispute that the offending lorry has been insured with the third respondent and the insurance policy was in force as on the date of accident and the claimant is said to be a loader and he was engaged by the owner of the lorry involved in the accident. Merely because he was not examined, it cannot be said that he was not working as a loader in the offending lorry. The Tribunal taking into consideration these aspects and the evidence of P.Ws. 1 and 2 and perusing the documents marked on behalf of the injured – claimant as Exs.P.1 to P.20 and insurance policy marked as Ex.R.1 on behalf the third respondent awarded compensation in a sum of Rs.45,000/- under various heads which is said to be inadequate. Therefore, it requires to be enhanced globally, in a sum of Rs.55,000/- and the same shall be fetching interest at the rate of 6% per annum, in addition to Rs.45,000/- that has been awarded by the Tribunal.
9. In view of the judgment of the Hon’ble Supreme Court in Mukund Dewangan v. Oriental Insurance Company Limited, AIR 2017 SC 3668, as the policy was in force as on the date of the accident, liability has to be saddled on the respondent No.3 – Insurance Co.
Accordingly, I have to proceed to pass the following order :
The appeal is allowed in part. Consequently, the appellant is entitled for a global compensation in a sum of Rs.55,000/-, with interest at 6% per annum from the date of petition till its payment. Accordingly, the judgment and award of the Tribunal is modified.
The respondent No.3 – Insurance Co. is directed to deposit the entire compensation awarded by the Tribunal as well as the global compensation awarded by this Court, before the Tribunal, within a period of six weeks from the date of receipt of a copy of this order.
Office is directed to draw the decree accordingly.
Mgn/-
Sd/-
JUDGE