IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5TH DAY OF APRIL, 2019 BEFORE THE HON’BLE MR.JUSTICE N.K.SUDHINDRARAO M.F.A.No.8622 OF 2009(MV) BETWEEN B.E. Jaji, W/o. late D.H. Ramesh, Aged about 60 years, R/at. No. 201, 12th Block, 2nd Floor, Blockpalli Police Quarters, Shivajinagar, Bangalore. ... Appellant (By Sri. Shripad V. Shastri, Advocate) AND 1. United India Insurance Co. Ltd., D.O. VI, 89/1, 2nd Floor, 11th Cross, Sampige Road, Malleshwaram, Bangalore – 560 003, By its Manager.
2. Smt. Bharathi, W/o. S. Ganesh, Major, R/at. No. 482, 10th Cross, IV Main, L.N. Pura, Bangalore – 560 021.
3. New India Assurance Co. Ltd., D.O.No. 52, Vinay Complex, Vani Vilas Road, Opp. National College, Basavanagudi, Bangalore – 560 004.
4. Venkatesh H.M., Major in age, R/at. No. 282/74, Opp. New Venkateshwara Hospital, 2nd Cross, Peenya 2nd stage, Bangalore – 560 058. ... Respondents (By Sri. M.U. Poonacha, Advocate for R.1, Notice to R.2 held sufficient v/o. dt. 2.12.13, Notice to R.3 and 4 dispensed with v/o. dt. 4.7.13.) This MFA is filed under Section 173(1) of MV Act against the judgment and award dated 20.07.2009 passed in MVC No.4427/2006 on the file of 6th Additional Judge, Court of Small Causes and MACT, Bangalore, partly allowing the claim petition for compensation and seeking enhancement of compensation .
This MFA coming on for ‘further hearing’, this day, the Court delivered the following:
JUDGMENT The learned counsel for the appellant is present.
The learned counsel for the respondent is absent.
2. This appeal is directed against the judgment and award dated 20.07.2009 passed by the learned IV Additional Judge, Court of Small Causes and MACT, Bangalore, in MVC No.4427/2006.
3. The claim petition is filed by the claimant for compensation for the injuries and disabilities suffered by her in the road traffic accident dated 10.04.2006 because of the negligent driving by the driver of autorickshaw bearing registration No. KA-02-3551 in Magadi Road, near KHB Colony.. The appellant was aged 57 years and was working as Woman Assistant Sub-Inspector and earning Rs.10,279/- per month.
4. The Insurance Company of the autorickshaw resisted the claim petition.
5. The learned Member was accommodated with the oral evidence of P.W.1 – claimant and P.W.2 – Dr. S. Ramachandra and R.W.1 – K.Chandrashekar and R.W.2 – N.Kannnan, and the documentary evidence of Exs. P.1 to P.9 on behalf of the claimant and Exs. R.1 to R.5, including charge sheet, and a copy of the Policy on behalf of the respondents.
6. It is stated that on the date mentioned above, the autorickshaw dashed against the Qualis car bearing registration No. KA-02: C-1427 which was approaching from Western to Southern side and the petitioner suffered injuries and she submitted details of the expenditure incurred to the extent of more than Rs.15,000/-. It is also stated, she was working as Woman Assistant Sub-Inspector.
7. The Insurance company of the autorickshaw is the main contestant and is arrayed as respondent No.1. It is stated that the driver of the autorickshaw was not having driving licence. As such, the appellant was not entitled for compensation claimed by her.
8. The learned Member adjudicated the matter holding the owner – the second respondent before the Tribunal is liable to pay the compensation and exonerated the respondent – Insurance Co. and directed for payment of compensation of Rs.78,000/- with interest.
9. The learned counsel for the appellant, Sri.
Shripad V. Shastri, submits that the principle of law applicable to the case though allows for claiming compensation in cases where driver did not possess licence, the liability has to be fixed on the Insurance Co. and in this connection, he relied upon the following judgments :
i) 1999 ACJ 171 – Rukmani and others vs.
New India Assurance Co. Ltd. And others ii) MFA 9308/2011 – United India Insurance Co. Ltd. vs. Smt. Rathna and another.
iii) Civil Appeal No.20962/2017 – Pappu and others vs. Vinod Kumar Lamba and another.
10. Learned counsel for the respondent Sri. M.U. Poonacha would submit that the judgments referred by the learned counsel for the appellant do not refer regarding non-possessing of licence and the said decision is applicable in the case of non-transport vehicle.
11. Learned counsel for the Insurance Co. would further submit that the circumstances and facts of the case are different and the said decisions are not applicable. In the circumstances of the case, it is necessary to find out the extent of applicability of the decisions.
12. In so far as the question of law on liability to pay compensation is concerned, the following points are to be made amply clear :
Occurrence of accident is not disputed. Involvement of the vehicles - autorickshaw bearing No. KA-02-3551 and Qualis car bearing No. KA-02-C-1427 is also not disputed.
13. Criminal case was registered against the driver of the autorickshaw for the offence punishable under Section 279 IPC. Petitioner is stated to be a Woman Assistant Sub-Inspector of Police and was getting salary at the rate of Rs.10,279/- per month. The compensation is calculated on the following heads :
1. Pain and sufferings Rs.35,000/-
2. Food and nourishment Rs. 2,000/-
3. Travelling expenses Rs. 1,000/-
4. Medical expenses Rs.10,003/-
5. Loss of earnings Rs.20,000/-
6. Loss of amenities Rs.10,000/-
Rs.78,003/-
14. The injuries suffered by the claimant are as under:
1. Injury to the left shoulder with fracture middle third left clavicle 2. Abrasion over left thigh 3. Abrasion over the right leg.
The doctor on examination of the claimant stated that the percentage of disability is 5.3%.
15. It remains to be seen whether the petitioner has stated that she has received compensation from the Government sector as she is stated to be working as Assistant sub-Inspector of Police.
16. Learned Counsel Sri. Shripad V. Shastri would submit that the appellant – claimant has not claimed the medical expenditure from the Government and there is no denial of this statement by the learned counsel for the respondent.
17. Learned counsel for the respondent would submit that appellant should have received medical reimbursement. However, appellant’s counsel denies the same.
18. Learned member of the Tribunal has erred in not awarding reasonable compensation and also ignored the liability of the Insurance Company. Considering the nature of injuries and status of the claimant being a Government employee, I find that an amount of Rs.1,00,000/- (Rs. 1,00,000 - Rs.78,000 = Rs.22,000/-) should have been granted with 6% interest from the date of petition till realisation, which is just and fair compensation. The Insurance Company is directed to pay the amount of compensation including the enhanced compensation to the claimant within four weeks from the date of receipt of copy of the order, and recover the same from the owner of the autorickshaw.
Appeal is partly allowed. Impugned judgment and decree dated 20.07.2009 passed in MVC No.4427/2006 by the Tribunal is modified to that extent.
Sd/- JUDGE Mgn/-