IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR MFA NO. 8807 OF 2010 ( MV ) CONNECTED WITH MFA CROB. NO. 156 OF 2010 ( MV ) IN MFA NO. 8807 OF 2010: BETWEEN The Branch Manager New India Assurance Co. Ltd., Bagalur Mansion, 1st Floor Doddapet, Kolar By Regional Office, Unity Building Annex-P, Kalinga Rao Road Bangalore – 560 027 By it’s Manager.
... Appellant (By Sri. O. Mahesh – Advocate for Appellant) AND 1. S. K. Rasheed S/o Late Sheik Abdulla Advocate, Aged 49 years R/o 332, Near Saraswathi Vidyanikethan Vivekanandanagar Bangarpet.
2. Hyder Ali Age 71 years S/o Late Sheik Abdulla R/o Muthukapalli Village Yeldur Hobli Srinivasapura Taluk.
... Respondents (By Sri. M. S. Rajendraprasad – Senior Counsel for Sri N. Manjunath – Advocate for R-1; R-2 Served) This MFA filed u/S 173(1) of MV Act against the judgment and award dated 05.05.2010 passed in MVC No. 24/2009 on the file of Additional Civil Judge (Sr. Dn.,) and MACT, K.G.F., awarding a compensation of Rs.2,10,000/- with interest @ 6% p.a. from the date of petition till deposit.
MFA CROB. NO. 156 OF 2010 : BETWEEN Sri S. K. Rasheed S/o Late Sri Sheik Abdulla Aged about 49 years Occupation: Advocate Residing at No.332 Near Saraswathi Vidyanikethan Viveknagar, Bangarpet.
... Cross objector (By Sri. M. S. Rajendraprasad – Senior Counsel for Sri No. Manjunath - Advocate) AND 1. Sri Hyder Ali S/o Late Sheik Abdulla Aged about 71 years Resident of Muthukapalli Village Yeldur Hobli Srinivasapura Taluk Kolar District.
2. The New India Assurance Co. Ltd., Bagalur Mansion, 1st Floor Doddapet, Kolar.
... Respondents (By Sri Keshava. K – Advocate for R-1 Sri O. Mahesh – Advocate for R-2;) This MFA Crob in MFA 8807/2010 filed under order 41 rule 22(1) of CPC, r/w Section 173(1) of MV Act against the judgment and award dated 05.05.2010 passed in MVC No. 24/2009 on the file of Additional Civil Judge (Sr. Dn.,) and MACT, K.G.F., partly allowing the claim petition for compensation and seeking enhancement of compensation.
This MFA and MFA. Crob. coming on for final hearing and admission, this day, the court delivered the following:
JUDGMENT Since both the appeals arise out of the same judgment and award rendered by the Tribunal, they are heard together and are finally disposed of by this order.
2. The appeal in MFA.No.8807/2010 is filed by the appellant Insurer – New India Assurance Company Limited challenging the quantum of compensation awarded by the Tribunal as well as the liability. MFA Crob. 156/2010 is filed by the claimant – cross-objector who is the injured, seeking enhancement of the compensation awarded by the Tribunal by its impugned order dated 05.05.2010 in MVC No.24/2009. By the said order, the Tribunal has awarded compensation in a sum of Rs.2,10,000/- to the claimant – injured.
3. Heard the learned counsel for the claimant – Cross-objector in MFA Crob.No.156/2010 as well as the learned counsel for the appellant – Insurer in MFA No.8807/2010 and perused the impugned judgment as well as the material on record.
4. The factual matrix is that on 1.6.2009 at about 7.40 a.m. when the injured was proceeding on a motor cycle bearing No.KA-07/Q/851 towards KGF from Bangarpet, when he was near the bus stop of Benganur village, the driver of a car bearing Regn.No.KA-04-M- 1198 had driven the same in a rash and negligent manner and dashed the motor cycle. As a result, he fell down and sustained grievous injuries and was immediately admitted to R.L. Jalappa Hospital, Kolar where he was provided treatment and had spent a huge sum towards medical expenses. Prior to the accident he was hale and healthy and being an Advocate by profession, was earning more than Rs.50,000/- per month. Since he was unable to attend to his duties as before in view of the injuries sustained in the accident, he filed a claim petition before the Tribunal seeking compensation.
5. On receipt of notice, the Insurer appeared through counsel and filed objections denying all the petition averments and contending that the rider of the motorcycle – injured had contributed to the accident and it had occurred due to his negligence. It was further contended that the driver of the offending car did not possess valid and effective driving licence and valid FC at the time of the alleged accident and hence the respondent was not liable to pay any compensation and hence sought for dismissal of the claim petition.
The Tribunal, after evaluating the oral and documentary evidence held that the accident had occurred due to the negligence of the driver of the car and proceeded to award compensation of Rs.2,10,000/- with interest at 6% per annum from the date of petition till the date of deposit and directed the Insurer to deposit the compensation. The appellant – Insurance Company has filed MFA No.8807/2010 seeking to totally exonerate the Insurer of its liability and the Cross-Objector – claimant has filed MFA Crob.No.156/2010 seeking for enhancement of compensation awarded by the Tribunal.
6. Learned counsel for the Insurance Company – appellant in MFA No.8807/2010 contends that the Tribunal has failed to appreciate the fact that the history of injury as per the records of the hospital was due to fall from a bike on 1.6.2009 wherein he was admitted and treated till 20.06.2009 and discharged on the same day. For the first time a complaint came to be lodged with Bangarpet police on 24.06.2009 and that the case of the injured was never treated as a Medico legal case and police were also not informed about it. It is the contention of the learned counsel that the injured being an Advocate by profession has colluded with the police and lodged a false complaint regarding the accident. It is the further contention of the learned counsel that the driver did not possess a valid driving licence as on the date of the accident and as such the licence was renewed only after the accident. Hence, the learned counsel contends that the Insurer was not at all liable to pay the compensation. Hence, he prays that his appeal be allowed and the liability to pay the compensation be fastened on the owner of the offending vehicle.
7. Per contra, learned counsel for the claimants / Cross-objector in MFA Crob.156/2010 contends that the Wound Certificate at Exhibit P4 disclosed that the claimant suffered from the following injuries:
i) Lacerated wound over the right knee joint ii) Distal radius fracture over the left wrist iii) Distal tibia fracture over the left ankle, bones exposed iv) Swelling with red and bluish colour, high B.P. semi unconscious and leakage of bone marrow etc.
The learned counsel contends that a perusal of the said injuries by itself clearly goes to show that the same have been caused due to the accident abovementioned and not due to a mere fall from a bike. Hence, the learned counsel for the Cross-objector contends that the said contention of the learned counsel for the Insured is baseless and requires to be rejected at the threshold.
Further, as regards the driver of the offending vehicle not possessing valid driving licence as on the date of the accident, the learned counsel for the Cross- objector has placed reliance on a decision rendered by the Hon’ble Apex Court in the case of PAPPU & ORS. vs. VINOD KUMAR LAMBA & ANOTHER (AIR 2018 SC 592), wherein the relevant paragraph reads as under:
“Motor Vehicles Act, S.149 – Insurer’s liability – Accident occurred due to rash and negligent driving of truck – Insurer taking plea that driver of offending truck had no valid licence - Except copy of driving licence of person, owner of offending truck not producing any evidence establishing that it was driven by authorized person having valid driving licence – Fact that offending truck was duly insured – would not per se make insurance company liable – However, insurance company directed to pay award amount to claimants in first instance and in turn, recover same from owner of vehicle”
Keeping in view the ratio laid down by the Apex Court, learned counsel for the Cross-Objector seeks for allowing the appeal and directing the Insurance Company to pay compensation in the first instance and then recover the same from the owner of the vehicle.
As regards enhancement, the learned counsel for the Cross-Objector contends that though the Tribunal had taken his income at Rs.10,000/- per month and had accepted that he suffered disability to an extent of 25% to the whole body, without calculating the compensation to be awarded towards ‘Loss of future income due to disability’ taking the appropriate multiplier, had proceeded to award amounts globally, which has resulted in a very meager compensation being awarded by the Tribunal under the said head. Hence, the learned counsel contends that taking into consideration that the injured was an experienced Advocate by profession, seeks to enhance the monthly income taken by the Tribunal considerably and thereby calculate the compensation to be awarded under the said head by adopting appropriate multiplier and applying the percentage of permanent disability.
Further, he contends having regard to the nature of injuries sustained, the compensation awarded by the Tribunal towards ‘Grievous injury’ being on the lower side, the same also be enhanced suitably.
It is the further contention of the learned counsel that the injured was under continuous treatment and was without any work for a minimum period of three months. As the Tribunal has not at all considered the said aspect, he contends that the said fact be taken into consideration by this court and the compensation towards ‘Loss of income during laid-up period’ be awarded to him suitably.
On all these grounds, the learned counsel for the claimant – Cross-objector in MFA.Crob.156/2010 prays for allowing his cross appeal and enhancing the compensation awarded by the Tribunal suitably.
8. In the background of the contentions taken by learned counsel for the appellant in MFA 8807/2010 – Insurer and the learned counsel for the claimant – Cross Objector in MFA.Crob.156/2010, I find that there is no dispute with regard to the accident that occurred on 1.6.2009 and the injuries sustained by the claimant – Cross-objector.
As regards enhancement aspect is concerned, as rightly contented by the learned counsel for the claimant – Cross-objector, I find that the Tribunal has erred in not computing the compensation to be awarded towards ‘Loss of future income due to disability’ by taking his income, percentage of disability and appropriate multiplier. Hence, I am of the opinion that the compensation towards the said head requires re- assessment by this Court.
Having regard to the fact that the injured was an Advocate by profession who was said to be earning Rs.50,000/- per month, I find it appropriate to take his income at Rs.15,000/- per month instead of Rs.10,000/- as opined by the Tribunal. Further, since he was aged 48 years, the appropriate multiplier as per SARLA VARMA AND OTHERS vs. DELHI TRANSPORT CORPORATION AND ANR. (2009 ACJ 1298), would be ‘13’. Further, as opined by the Tribunal, the whole body disability of the injured is adopted at 25%. Hence, with Rs.15,000/- as the monthly income and multiplier ’13 and with disability at 25%, the compensation to be awarded towards ‘Loss of future income due to disability’ is worked out to Rs.5,85,000/- (15000 x 12 x 13 x 25/100) as against Rs.60,000/- awarded by the Tribunal.
Further, since he could not attend to his work for a minimum period of three months, I hereby award a sum of Rs.45,000/- (15000 x 3) towards ‘Loss of income during laid-up period’, which has not been considered by the Tribunal.
In view of the gravity of injuries sustained by the claimant, I hereby enhance the compensation towards ‘Grievous injury’ by another Rs.10,000/- in addition to Rs.40,000/- awarded by the Tribunal. However, the compensation granted by the Tribunal in respect of the other heads shall remain unaltered.
In view of the discussion made above and with the altered factors, the compensation is re-worked out as under:-
Particulars
Grievous injury Medical expenses Pain and sufferings Conveyance & Misc. charges Compensation awarded by MACT Compensation enhanced by this Court Total
Loss of future income Attendant charges Loss of income during laid- up period TOTAL Thus, in all, the claimant / Cross-objector in MFA Crob.156/2010 is entitled to total compensation of Rs.7,90,000/- as against Rs.2,10,000/- awarded by the tribunal. The enhanced compensation would come to Rs.5,80,000/-.
9. Further, as regards liability, the learned counsel for the insurer contends that this is a case of “no valid and effective driving license” and therefore, the insurer cannot be held liable, since it touches the essential condition of contract of insurance. Per contra, in view of the contention of the learned counsel for the claimant – Cross-objector that the question raised in the appeal is no longer res integra, the same having been answered by the Apex Court against the insurer in the case of Pappu and Others Vs. Vinod Kumar Lamba and Another (AIR 2018 SC 592), I am of the opinion that the Insurer shall be directed to pay the compensation in the first instance and then recover it from the owner of the offending vehicle on the principle of ‘pay and recover’.
Therefore, keeping in view the ratio of reliance as stated supra, and no other grounds having been urged, I proceed to pass the following:
ORDER MFA Crob.156/2010 is allowed in part and MFA No.8807/2010 is dismissed. The impugned judgment and award dated 05.05.2010 in MVC No.24/2009 is modified. The claimant – Cross-objector is entitled for an enhanced compensation of Rs.5,80,000/- which shall carry interest @ 6% p.a. from the date of petition till payment.
Insurer – New India Assurance Company Ltd. shall deposit the entire compensation with interest before the tribunal within four weeks from the date of receipt of copy of this judgment and on such deposit, the same shall be disbursed to the claimant in terms of the award, on proper identification. Any amount already in deposit shall be adjusted. Further, any amount in deposit in MFA 8807/2010 before this court shall be remitted to the concerned Tribunal forthwith. However, the impugned judgment and award, in so far as it relates to the rate of interest, deposit and apportionment is concerned shall remain unaltered.
After depositing the entire compensation, the Insurer is at liberty to recover the compensation so paid from the owner of the offending vehicle, in view of the judgment in Pappu’s case (supra).
Office to draw the decree accordingly.
Sd/- JUDGE KS