IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 24TH DAY OF JANUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MISCELLANEOUS FIRST APPEAL NO.8434/2011 (MV) BETWEEN:
BAJAJ ALLIANZ GENERAL INSURANCE COMPANYLIMITED, NO 363, SRIHARI COMPLEX, MARIMALLAPPA COLLEGE ROAD, SEETHAVILAS ROAD, MYSORE 570 024, HEREIN REPRESENTED BY REGIONAL OFFICE, T.B.R. TOWERS, NEW MISSION ROAD, ADJACENT TO JAIN COLLEGE, BANGALORE 560 002.
BY ITS ASSISTANT VICE PRESIDENT (LEGAL).
... APPELLANT (BY SRI.H S LINGARAJ, ADVOCATE) AND 1. THAMMANNAIAH S/O SHANIVARAIAH, AGED ABOUT 42 YEARS, R/O GERASANAHALLI, HALEBEEDU POST, BILIKERI HOBLI, HUNSUR TALUK, PRESENTLY R/AT NO.49/2, 18TH CROSS, JAYANAGAR, MYSORE.
PIN CODE – 570001.
2. GOVINDEGOWDA K. V S/O VENKATEGOWDA, MAJOR, R/O KOMMEGOWDANA KOPPALU, HUNSUR TALUK, MYSORE DISTRICT. PIN CODE – 571105.
3. BHEEMESH, S/O MADEGOWDA, AGED ABOUT 27 YEARS, R/O SUBBANAHALLI, HUNSUR TALUK, MYSORE DISTRICT.
PIN CODE – 571105.
... RESPONDENTS (BY SRI.H.V. BHANUPRAKASH, ADVOCATE FOR R.1, SRI.PRASANNA DESHPANDE, ADVOCATE FOR R.2 AND SRI.ROHITH GOWDA, ADVOCATE FOR R.3) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:02.06.2011 PASSED IN MVC NO.1167/2009 ON THE FILE OF THE I ADDITIONAL DISTRICT JUDGE, MACT, MYSORE, AWARDING A COMPENSATION OF Rs.3,11,040/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION..
THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
J U D G M E N T The Insurer in this appeal has disputed the liability and the quantum of compensation awarded by the MACT, Mysore in MVC No.1167/2009 dated 02.06.2011, whereby the Tribunal awarded a compensation of Rs.3,11,040/- to the respondent No.1 herein for the injury said to have been sustained in a road traffic accident.
2. I have heard the learned counsel appearing for the Insurer/appellant and the learned counsel appearing for the respondent No.1.
3. The brief facts leading to the filing of the present appeal is that; on 09.05.2006 at about 5.30 p.m., the claimant/respondent No.1 was traveling in a Goods Autorikshaw bearing registration No.K.A-45-360 for loading vegetables. After loading vegetable sacks into the Autorikshaw, when the claimant was going to another point a little further to pick up the vegetable sacks, the said Goods Autoriksha, which was driven by its driver came in a rash and negligent manner and knocked him down and in the process of avoiding the accident, when Autoriksha driver turned the Autoriksha, he lost control and the Autoriksha toppled and claimant was caught under the Autoriksha and sustained injuries. Injured/claimant was admitted to K R Hospital at Mysore and took treatment for the injuries sustained by him. It is the further case of the claimant that in the said accident, he sustained fracture to his right Thigh (Femur) and a rod was fixed by operating on him.
4. The injured/claimant filed a claim petition by claiming a total compensation of Rs.27,75,000/- before the Tribunal. To substantiate his claim, he got examined three witnesses namely P.W.1 to P.W.3 and got marked Ex.P.1 to 101. Disputing the claim petition, the Insurance Company filed its objections and got examined R.W.1 and R.W.2 and got marked Ex.R.1 to R.11.
5. The Tribunal, after considering the evidence and material on record, came to the conclusion that the claimant was entitled for a total compensation of Rs.3,11,040/- with 6% interest and directed that the respondents therein are jointly and severally liable to pay the compensation.
6. The learned counsel Sri.H.S.Lingaraj assailing the judgment and award passed by the Tribunal vehemently contended that the claimant was traveling in the Goods Autoriksha when the accident occurred and therefore, he being an unauthorized passenger being carried in the goods vehicle, the Insurance Company is not liable to pay any compensation. He would contend that the assertion of the claimant regarding the genuineness of the accident is contrary to the hospital records such as Ex.P.1 i.e., Wound Certificate and Ex.P.89 case summary sheet, wherein it is clearly disclosed that the claimant sustained injuries while he was traveling in a Goods Autoriksha. Hence, he submits that fastening liability upon the appellant/Insurance Company in spite of non-coverage of risk of unauthorized passenger in the goods vehicle is unjust and contrary to the settled law. It is also submitted that the claimant had filed a petition under the Workmen’s Compensation Act seeking compensation on the ground that he was an employee under the owner of the goods vehicle in question. However, subsequently the claim petition was withdrawn and therefore, the claimant was not entitled for any compensation in the claim petition filed before the Tribunal. Learned counsel would also contend that the driver of the goods vehicle had no valid driving license to drive a transport vehicle as he was having license to drive Light Motor Vehicle (NT) and there was no endorsement to drive Transport Vehicle. It is his further submission that the quantum of compensation awarded is also on the higher side and not commensurate with the nature of injuries as the Tribunal has awarded exorbitant amount under the head of pain and suffering and loss of amenities, which are uncalled for. Accordingly, learned counsel for the appellant sought to allow the appeal.
7. Per contra, the learned counsel appearing for claimant/respondent No.1 contended that the judgment and award passed by the Tribunal is just and proper since the Tribunal has given valid reasons for arriving at a conclusion that the claimant suffered injuries on account of rash and negligent driving by the driver of the Goods Autoriksha. He further contended that the First Information Report and Charge Sheet etc., clearly discloses that the accident occurred when the claimant was in the process of loading the vegetable sacks and at that time, the Goods Autoriksha driven by its driver came from behind in a rash and negligent manner and dashed against him. It is his further contention that no importance can be given to the history found in the hospital records as there is nothing on record to show that the said history was provided by the claimant. On the other hand, the claimant has produced relevant documents to show the manner in which the accident occurred. According to the Doctor, the history of the injury mentioned in Ex.P.89 was noted by the Anesthetic doctor and Ex.P.90 was noted by a Post Graduate Student. However, there is nothing to show that the said history was given by the claimant himself or by any other person on his behalf. Therefore, he submits that the findings recorded by the Tribunal is just and proper. It is also submitted that the claimant suffered crush injuries over the middle leg and the wound certificate and medical records show that he had sustained fracture of femur and fracture of both bones (R) 1/3. As such, he submits that the compensation now awarded by the Tribunal cannot be held to be unreasonable and accordingly, he seeks to dismiss the appeal.
8. It is the case of the claimant that on 09.05.2006, he was traveling in the Goods Autoriksha bearing Registration No.KA-45-360 to load vegetables. After loading the vegetables at one point, when he was moving to another point to load the vegetables, the Autoriksha which followed him dashed against him and in the process, Goods Autoriksha toppled and fell on him and he sustained grievous injuries. In order to substantiate his claim, the appellant got himself examined as P.W.1 and another witness as P.W.2. He has deposed before the Court that at the time of accident, he was going near Hosaramanahalli road and he was loading vegetable sacks into the Autoriksha. The Goods Autoriksha followed him as he was going to another point a little further to pick up the vegetables and the said Autoriksha suddenly in a rash and negligent manner driven by its driver dashed against him from behind and knocked him down. The Autoriksha driver while trying to avoid the accident lost control and the said Autoriksha fell on him and he was caught under the Autoriksha and the whole weight of the Autoriksha along with its vegetable load fell on the right thigh and hands of the claimant. There is no serious dispute in the cross-examination with regard to the manner of accident as narrated by the claimant. It is to be noticed that suggestion was put to this witness stating that the accident occurred when he was proceeding on the road and the accident occurred due to his negligence.
9. Perusal of the evidence of P.W.2 would also go to show that the Autoriksha suddenly came in a rash and negligent manner driven by its driver and dashed against the claimant from behind and knocked him down. When Autoriksha driver tried to avoid hitting the claimant, he lost control of Autoriksha and the said Autoriksha fell on the claimant who was caught under it. The whole weight of the Autoriksha along with its vegetable load fell on the right thigh and hands of the claimant. In the cross- examination of this witness, suggestion put to him that the claimant was traveling in the said Autoriksha, which was denied.
10. It is the contention of the learned counsel for the appellant that the Wound Certificate at Ex.P.6 as well as the Medical Records at Ex.P.89 and Ex.P.90 show that the accident occurred when the injured was proceeding in the Goods Autoriksha and therefore the Insurer is not liable, since his liability is not covered under the policy. However, there is nothing on record to show that the history found in the medical record were furnished by the claimant himself. It is not made clear as to who furnished the said history. Even, otherwise, history furnished in the Wound Certificate or in other medical records in the absence of any other corroborative piece of evidence cannot be taken into account to hold that the accident occurred in a particular manner. Perusal of the FIR goes to show that the accident occurred when the injured/claimant after loading the vegetables was moving further and at that time the Autoriksha in question came from behind and dashed against him. It is relevant to note that after completion of investigation, charge sheet was filed against the driver of the Goods Autoriksha wherein also it is mentioned that the accident occurred on account of rash and negligent driving by the driver of the Autoriksha and claimant sustained injuries, when the said Autoriksha dashed against him and thereafter, toppled and fell on him. Therefore, the contention of the learned counsel for the appellant that the Tribunal was not proper in fastening the liability upon the appellant since the claimant was traveling in the goods vehicle and he was a passenger in the said vehicle and therefore, the Insurance Company is not liable etc., cannot be accepted.
11. It is also the contention of the learned counsel for the appellant that the driver of the goods vehicle was not possessing any valid driving license, since he was possessing driving license to drive a Light Motor Vehicle and there was no endorsement to drive a goods vehicle. However, the said contention may not stand in view of the judgment of the Hon’ble Supreme Court in the case of Mukund Dewangan vs. Oriental Insurance Company Limited reported in AIR 2017 SC 3668, wherein the Hon’ble Supreme Court has held in para No.46 as under;
“46. Section 10 of the Act requires a driver to hold a licence with respect to the class of vehicles and not with respect to the type of vehicles. In one class of vehicles, there may be different kinds of vehicles. If they fall in the same class of vehicles, no separate endorsement is required to drive such vehicles. As light motor vehicle includes transport vehicle also, a holder of light motor vehicle licence can drive all the vehicles of the class including transport vehicles. It was pre- amended position as well the post-amended position of Form 4 as amended on 28.3.2001. Any other interpretation would be repugnant to the definition of "light motor vehicle" in section 2(21) and the provisions of section 10(2)(d), Rule 8 of the Rules of 1989, other provisions and also the forms which are in tune with the provisions. Even otherwise the forms never intended to exclude transport vehicles from the category of 'light motor vehicles' and for light motor vehicle, the validity period of such licence hold good and apply for the transport vehicle of such class also and the expression in Section 10(2)(e) of the Act 'Transport Vehicle' would include medium goods vehicle, medium passenger motor vehicle, heavy goods vehicle, heavy passenger motor vehicle which earlier found place in section 10(2)(e) to (h) and our conclusion is fortified by the syllabus and rules which we have discussed. Thus we answer the questions which are referred to us thus:
(i) 'Light motor vehicle' as defined in section 2(21) of the Act would include a transport vehicle as per the weight prescribed in section 2(21) read with section 2(15) and 2(48). Such transport vehicles are not excluded from the definition of the light motor vehicle by virtue of Amendment Act No.54/1994.
(ii) A transport vehicle and omnibus, the gross vehicle weight of either of which does not exceed 7500 kg. would be a light motor vehicle and also motor car or tractor or a road roller, 'unladen weight' of which does not exceed 7500 kg. and holder of a driving licence to drive class of "light motor vehicle" as provided in section 10(2)(d) is competent to drive a transport vehicle or omnibus, the gross vehicle weight of which does not exceed 7500 kg. or a motor car or tractor or road-roller, the "unladen weight" of which does not exceed 7500 kg. That is to say, no separate endorsement on the licence is required to drive a transport vehicle of light motor vehicle class as enumerated above. A licence issued under section 10(2)(d) continues to be valid after Amendment Act 54/1994 and 28.3.2001 in the form.
(iii) The effect of the amendment made by virtue of Act No.54/1994 w.e.f. 14.11.1994 while substituting clauses (e) to (h) of section 10(2) which contained "medium goods vehicle" in section 10(2)(e), medium passenger motor vehicle in section 10(2)(f), heavy goods vehicle in section 10(2)(g) and "heavy passenger motor vehicle" in section 10(2)(h) with expression 'transport vehicle' as substituted in section 10(2)(e) related only to the aforesaid substituted classes only. It does not exclude transport vehicle, from the purview of section 10(2)(d) and section 2(41) of the Act i.e. light motor vehicle.
(iv) The effect of amendment of Form 4 by insertion of "transport vehicle" is related only to the categories which were substituted in the year 1994 and the procedure to obtain driving licence for transport vehicle of class of "light motor vehicle" continues to be the same as it was and has not been changed and there is no requirement to obtain separate endorsement to drive transport vehicle, and if a driver is holding licence to drive light motor vehicle, he can drive transport vehicle of such class without any endorsement to that effect.”
12. It is also not disputed that the unladen weight of the vehicle in question in the instant case does not exceed 7,500 k.g. and therefore, the holder of driving license to drive this class of Light Motor Vehicle is competent to drive a transport vehicle. As such, no separate endorsement on the license is required.
13. The next contention of the learned counsel for the appellant is that the Tribunal has erred in awarding a sum of Rs.1,00,000/- under the head ‘pain and suffering’ and another Rs.1,00,000/- for ‘loss of amenities’. The Wound Certificate at Ex.P.6 and the evidence of the Doctor/P.W.3 go to show that the claimant suffered crush injury over the middle of (RT) leg, there was fracture of femur (R) leg, fracture of both bones right upper 1/3 and it was diagnosed as Type III ‘B’ compound fracture of both bones of right leg and fracture of shaft femur (R). The evidence of P.W.3 also discloses that on 05.06.2006, a surgery was conducted and rod was inserted. Again on 26.06.2006, another surgery was conducted. Skin grafting was done. On 27.02.2008, the injured was again admitted as inpatient and it was observed that the fractured bones were not properly joined. On 28.02.2008, the LRS instrument was removed and he was discharged on 01.03.2008. Thereafter, the injured was visiting the hospital as an outpatient. Again, on examining the injured on 05.01.2011, it was found that he had difficulty in performing the daily activities. The Doctor has deposed that the rod which was inserted still remained and there is a disability to the extent of 58% to the right leg which is about 21% to the whole body. In the cross-examination of P.W.3, he has stated that the implants which were inserted in the thigh were inside and the said implants were removed only after union of the fractured bone. He has deposed that the femur is well united as per the recent X-ray but the implants were still inside. The tibia was fractured again. Since it is a compound fracture and since the bone was very weak, even a simple or jerk will cause fracture to that bone. Ex.P.101 the X-ray refers to the tibia, which is fractured again. Considering the nature of injuries sustained and the evidence on record, the compensation awarded under the head ‘pain and suffering’ and ‘loss of amenities’ cannot be held to be on the higher side.
14. The Tribunal, considering the evidence on record, has taken the monthly income of the claimant as Rs.3,000/- and the disability to the whole body at 21% and considering the age of the claimant, who was 40 years at the time of accident, awarded a sum of Rs.68,040/- under the head ‘loss of future income’, which is just and reasonable. There is no serious dispute with regard to the compensation awarded under other heads.
15. In view of the foregoing reasons, I do not see any error in the impugned judgment and award passed by the Tribunal. Accordingly, I proceed to pass the following;
ORDER The appeal is dismissed.
The amount in deposit before this Court shall be transmitted to the Tribunal, for disbursal.
SD/- JUDGE NBM