IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF JULY 2017 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO M.F.A.No.4155/2011(MV) C/W M.F.A.No.4153/2011 AND M.F.A.No.4157/2011(MV) IN M.F.A.No.4155/2011:
BETWEEN 1. THE MANAGER BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LTD SRI LAKSHMI COMPLEX OPPOSITE OF BSNL BUILDING B.M.ROAD, HASSAN – 573 201.
2. THE MANAGER THE BAJAJ ALLIANCE GENERAL INSURANCE CO. LTD.
GE PLAZA, AIRPORT ROAD, ERAVADA POONA 411 006.
REPRESENTED BY BAJAJ ALLIANCE GENERAL INSURANCE COMPANY LTD. SRI LAKSHMI COMPLEX OPPOSITE OF BSNL BUILDING B.M.ROAD, HASSAN.
BY REGIONAL OFFICE BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LIMITED No.31, GROUND FLOOR, TBR TOWERS, 1ST CROSS, NEW MISSION ROAD NEXT TO BENGALURU STOCK EXCHANGE BENGALURU – 560 024 REPRESENTED BY ITS SR.MANAGER.
... APPELLANTS (BY SRI P B RAJU, ADVOCATE) AND 1. SMT. GOWRAMMA AGED 47 YEARS W/O BOREGOWDA R/O KARAHALLY VILLAGE DODDAMAGGE HOBLI, ARAKALGUD TALUK HASSAN DISTRICT – 573 102.
2. SHRI B R SHIVAKUMARA AGED 32 YEARS S/O RAMEGOWDA R/O BELAVADI VILLAGE DODDAMAGGE HOBLI, ARKALGUD TALUK, HASSAN DISTRICT – 573 102. (OWNER OF APE AUTO BEARING REGISTRAION No.KA 13-1-2140) 3. T R RAVIKUMARA S/O RAJAPPA, THATTAVALU VILLAGE, DODDAMAGE HOBLI, ARKALGUD TALUK, HASSAN DISTRICT – 573 102.
(OWNER OF LUGGAGE AUTO BEARING REGISTRATION No.KA 13- A -3361) … RESPONDENTS (BY SRI S V NARAYANA MURTHY, ADVOCATE FOR R2 NOTICE TO R1, R3 SERVED) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:17.1.2011 PASSED IN MVC NO.79/2009 ON THE FILE OF SENIOR CIVIL JUDGE AND MACT, ARKALGUD, AWARDING A COMPENSATION OF Rs.15,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION AND TO SET ASIDE THE SAME.
IN M.F.A.No.4153/2011 BETWEEN 1. THE MANAGER BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LTD, SRI LAKSHMI COMPLEX OPPOSITE OF BSNL BUILDING B.M. ROAD HASSAN-573 201.
2. THE MANAGER THE BAJAJ ALLIANCE GENERAL INSURANCE CO. LTD.
GE PLAZA, AIRPORT ROAD, ERAVADA POONA - 411 006.
REPRESENTED BY BAJAJ ALLIANCE GENERAL INSURANCE COMPANY LTD. SRI LAKSHMI COMPLEX OPPOSITE OF BSNL BUILDING B.M. ROAD HASSAN-573 201.
BY REGIONAL OFFICE BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LIMITED No.31, GROUND FLOOR, TBR TOWERS 1ST CROSS, NEW MISSION ROAD NEXT TO BANGALORE STOCK EXCHANGE BANGALORE-560 024.
REPRESENTED BY ITS SR. MANAGER.
... APPELLANTS (BY SRI P B RAJU, ADVOCATE) AND 1. SMT VANAJAMMA AGED 42 YEARS W/O KRISHNEGOWDA R/O KARAHALLY VILLAGE, DODDAMAGGE HOBLI, ARAKALGUD TALUK, HASSAN DIST-573 102.
2. SHRI B R SHIVAKUMARA AGED 32 YEARS S/O RAMEGOWDA R/O BELAVADI VILLAGE, DODDAMAGGE HOBLI, ARAKALGUD TALUK, HASSAN DIST-573 102 (OWNER OF APE AUTO BEARING REGISTRATION No.KA.13-1-2140) 3. T R RAVIKUMARA S/O RAJAPPA THATTAVALU VILLAGE, DODDAMAGE HOBLI, ARKALGUD TALUK, HASSAN DISTRICT-573 102 (OWNER OF LUGGAGE AUTO BEARING REGISTRATION No.KA-13-A-3361) ...RESPONDENTS (BY SRI R P SOMASHEKARAIAH, ADVOCATE FOR R1 SRI S V NARAYANA MURTHY, ADVOCATE FOR R2 NOTICE TO R3 SERVED) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DATED:17.1.2011 PASSED IN MVC NO.78/2009 ON THE FILE OF SENIOR CIVIL JUDGE & MACT, ARKALGUD, AWARDING A COMPENSATION OF Rs.2,23,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION.
IN M.F.A.No.4157/2011 BETWEEN 1. THE MANAGER BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LTD, SRI LAKSHMI COMPLEX OPPOSITE OF BSNL BUILDING B.M. ROAD,HASSAN-573 201.
2. THE MANAGER THE BAJAJ ALLIANCE GENERAL INSURANCE CO. LTD.
GE PLAZA, AIRPORT ROAD, ERAVADA POONA - 411 006.
REPRESENTED BY BAJAJ ALLIANCE GENERAL INSURANCE COMPANY LTD. SRI LAKSHMI COMPLEX OPPOSITE OF BSNL BUILDING B.M. ROAD, HASSAN-573 201.
BY REGIONAL OFFICE BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LIMITED No.31, GROUND FLOOR, TBR TOWERS 1ST CROSS, NEW MISSION ROAD NEXT TO BANGALORE STOCK EXCHANGE BANGALORE-560 024.
REPRESENTED BY ITS SENIOR MANAGER.
(BY SRI P B RAJU, ADVOCATE) AND 1. SMT SAVITHRAMMA AGED 32 YEARS W/O SWAMYGOWDA R/O KARAHALLY VILLAGE, DODDAMAGGE HOBLI, ARAKALGUD TALUK, HASSAN DIST-573 102.
2. SHRI B R SHIVAKUMARA AGED 32 YEARS S/O RAMEGOWDA R/O BELAVADI VILLAGE, DODDAMAGGE HOBLI, ARAKALGUD TALUK, HASSAN DISTRICT-573 102 (OWNER OF APE AUTO BEARING REGISTRATION No.KA.13-1-2140) 3. T R RAVIKUMARA S/O RAJAPPA THATTAVALU VILLAGE, DODDAMAGE HOBLI, ARKALGUD TALUK, HASSAN DISTRICT-573 102 ... APPELLANTS (OWNER OF LUGGAGE AUTO BEARING REGISTRATION No.KA-13-A-3361) .. RESPONDENTS (BY SRI R P SOMASHEKARAIAH, ADVOCATE FOR R1 SRI S V NARAYANA MURTHY, ADVOCATE FOR R2 NOTICE TO R3 SERVED) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:17.01.2011 PASSED IN MVC No.80/2009 ON THE FILE OF THE SENIOR CIVIL JUDGE AND MACT, ARKALGUD, AWARDING A COMPENSATION OF Rs.5,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION.
THESE MFAs COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT These three appeals by the Insurance Company are directed against the judgment and award dated 17/01/2011 passed in MVC Nos.79/2009, 78/2009 and 80/2009 by the Senior Civil Judge and MACT, Arkalgud, wherein, the learned Member has allowed the claim petitions filed under Section 166 of M.V. Act and awarded the compensation together with interest at the rate of 6% p.a. from the date of the petition as under:
MVC No. 79/2009 Rs.15,000/- MVC No.78/2009 Rs.2,23,000/- MVC No.80/2009 Rs.5,000/-
2. In order to avoid confusion and overlappings, parties are referred to with reference to their respective rankings as stood in the Tribunal.
3. MVC No.79/2009 is filed by the victim Gowramma, W/o Boregowda; MVC No.78/2009 is filed by the victim Vanajamma, W/o Krishnegowda and MVC No.80/2009 is filed by Savithramma W/o Swamygowda.
4. All the three petitions are connected to the incident that occurred on 15.2.2008. On the said date, at about 11.30 p.m., petitioners were traveling in a passenger auto bearing Registration No.KA.13.A.2140 from Belavadi village to Holenarasipura. They hired the said auto and near Gonimara and Jodigubbi village while they were travelling in the said auto, the driver of the goods Ape Auto bearing Registration No.KA.13.A.3361 came from the opposite direction in a rash and negligent manner and dashed against the auto in which the petitioners were traveling. Petitioners claim that both the auto drivers were rash and negligent and it resulted in the accident. Due to which, petitioners sustained injuries and they have taken treatment from S.C. Hospital, Hassan and SSM Hospital Hassan and spend amount towards medical expenses. Therefore, they have filed claim petitions claiming compensation of Rs.5,00,000/-, Rs.20,00,000/- and Rs.5,00,000/-.
5. All the petitioners are the injured persons and the Insurance Company of the offending vehicle is one Bajaj Alliance General Insurance Company Limited and has filed written statement.
6. The learned Member adjudicated the matter on the accident, negligence, injury and entitlement for compensation and granted the compensation as stated above.
7. All the three appeals are preferred by the Bajaj Alliance General Insurance Company Limited. The judgment and award passed in MVC Nos.79/2009, 78/2009 and 80/2009 are challenged in MFA Nos.4155/2011, 4153/2011 and 4157/2011.
8. Insofar as MVC 79/2009 is concerned, judgment and award is challenged by the Insurance Company in MFA No.4155/2011. Petitioner Gowramma has sustained injuries on her left knee, back and other parts of the body.
The learned Member has awarded an amount of Rs.15,000/- as global compensation taking into consideration the nature of injuries sustained by the petitioner/ Gowramma and there is no permanent or partial disablement. However, in view of pain suffered by her, she has been put to inconvenience. An amount of Rs.15,000/- awarded by the Tribunal as global compensation is on the lower side. Considering the fact that date of disposal of claim petition is on 17.01.2011 and appeal being disposed of today, wherein petitioner have not been given any amount so far and in the interest of justice and equity, it is just and proper to enhance the compensation by another Rs.15,000/- maintaining the same rate of interest.
9. Insofar as MVC 78/2009 is concerned, judgment and award is challenged by the Insurance Company in MFA No.4153/2011. In the accident, the injuries sustained by the petitioner Vanajamma are as follows:
i. Multiple lacerated injury on right thigh;
ii. Swelling and deformation on right thigh (fracture of lower end of right femur) iii. Swelling and deformation on right leg (fracture of tibia and fibula) 10. Petitioner has produced all medical documents and the total amount of medical expenditure as reflected in the medical bills is Rs.1,67,264/-. Insofar as the disability is concerned, PW2, Doctor has assessed the disability at 55% to the right femur and 8% to the upper limb. The learned Member has granted the compensation as under:
Pain and agony Rs. 25,000/- Loss of income during treatment Rs. 6,000/-
Loss of income on account of permanent disability Rs.1,08,000/-
Medical and other expenses Rs. 60,000/-
Attendant charges Rs. 04,000/-
Loss of amenities Rs. 20,000/- Total Rs.2,23,000/-
11. The learned Member considering the disability at 20% to the whole body granted the compensation of Rs.2,23,000/- as stated above. The Insurance Company has preferred the appeal for setting aside the judgment and award. Whether the petitioner is before the Court or not, in the circumstances, right to the compensation resulting because of a social legislation and never be deprived because of the absence of formalities. Petitioner claim income at Rs.10,000/- per month and being disabled from earning. Thus, the Tribunal comes to a conclusion that her income be at Rs.3,000/- for the purpose of assessing the loss of income because of disability. The consideration of notional income at Rs.3,000/- per month does not appear to be just and proper and therefore, it is to be considered at Rs.4,000/- per month. However, the percentage of disability taken at 20% to the whole body and multiplier of 15 applied by the Tribunal is just and proper and it needs to be maintained. Thus, the petitioner is entitled for Rs.1,44,000/- (Rs.4,000/- x 12 x 15 x 20%) towards loss of income on account of permanent disability instead of Rs.1,08,000/- as awarded by the Tribunal.
12. Insofar as loss of income during treatment period is concerned, it is increased to Rs.8,000/-. Compensation awarded towards Pain and suffering is increased to Rs.30,000/- and towards loss of amenities is increased to Rs.10,000/-. Thus, petitioner is entitled to a modified compensation as under:
Pain and agony Rs. 30,000/-
Loss of income during treatment period Loss of income on account of permanent disability Rs. 08,000/- Rs.1,44,000/-
Medical and other expenditure Rs. 60,000/- Attendant charges Rs. 04,000/-
Loss of amenities Rs. 30,000/- Total Rs.2,76,000/-
13. Thus, petitioner is entitled for enhanced compensation of Rs.53,000/- with interest at 6% per annum from the date of petition till its realization.
14. Insofar as MVC 80/2009 is concerned, judgment and award is challenged by the Insurance Company in MFA No.4157/2011. Petitioner Savithramma has sustained pain and swelling on left hip as per wound certificate. The learned Member has awarded an amount of Rs.5,000/- as global compensation taking into consideration the nature of injuries sustained by the petitioner/ Savithramma and as there is no permanent or partial disablement. However, in view of pain suffered by her, she has been put to inconvenience. An amount of Rs.5,000/- awarded by the Tribunal as global compensation is on the lower side. Considering the fact that date of disposal of claim petition is on 17.01.2011 and appeal being disposed of today, wherein petitioner have not been given any amount so far and in the interest of justice and equity, it is just and proper to enhance the compensation by another sum of Rs.5,000/- maintaining the same rate of interest.
15. Learned counsel for the appellant/Insurance Company would submit that, none of the petitioners are entitled for compensation, for the reason that, drivers of both the vehicles were not holding valid licence as it is the mandate of law that a person holding licence for LMV vehicle for non transport vehicle though stands in different compartment one cannot take the benefit of other vehicle insofar as driving licence is concerned. In the context and circumstances of the case, both are Light Motor Vehicles in terms of capacity and driver is entitled to drive this or that vehicle. But this calculation is fortified by the Apex Court by virtue of the latest Judgment in CIVIL APPEAL NO.5826/2011 – MUKUND DEWANGAN VS ORIENTAL INSURANCE COMPANY LIMITED – TRANSPORT VEHICLE, the contentions placed at rest. Thus the nature of licence whether transport or otherwise matters little.
16. Thus, in the circumstances and in view of the judgment of the Apex Court cited supra, the case of the appellant against the compensation either in respect of income, disability or invalidity of the driving licence are not justifiable. Therefore, appeals are devoid of merits and are liable to be rejected.
17. However, the claimants/victims Gowramma, Vanajamma and Savithramma are entitled for the enhanced compensation of Rs.15,000/-, Rs.53,000/- and Rs.5,000/- respectively. Though they have not preferred any appeals, the enhancement is made by this Court keeping in mind ‘just income’ and ‘just compensation’ which concept cannot be foregone by quoting the reason ‘the appeal is not preferred’. The concept of ‘just compensation’ need not be the one claimed or admitted. On the other hand, it should based on the matter of life style and justifiable standard. In such a situation, whenever in the proceeding for compensation, it would be an opportunity to the Tribunal to assess the loss to body and life and it need not be at the option or discretion of the insurer or the owner and even no appeal or cross objection is preferred by a claimant.
19. Hence, I pass the following:
ORDER (i) Appeals filed by the Insurance Company are dismissed.
(ii) Judgment and award dated 17th January 2011 passed by the Tribunal in MVC Nos.79/2009, 78/2009 and 80/2009 are hereby set aside to modify the same by enhancing the compensation by Rs.15,000/-, Rs.53,000/- and Rs.5,000/-
respectively, together with interest at 6% p.a. from the date of petition till its realization.
(iii) Insurance Company is directed to deposit the compensation amount including the enhanced compensation with interest before the jurisdictional Tribunal within an outer limit of four weeks from the date of receipt of certified copy of this judgment.
(iv) Amount in deposit, if any by the Insurance Company in these appeals shall be transmitted to the jurisdictional Tribunal, forthwith.
Sd/- JUDGE tsn*