IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF DECEMBER, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT M.F.A.NO.2302 OF 2014 (MV) BETWEEN C. SANNAPPA @ SANNAPPAIAH, S/O. CHANDRANNA, AGED ABOUT 23 YEARS, R/AT ROPPA ASHOKSIDDAPURA POST, DEVASAMUDRA HOBLI, MALAKALMUR TALUK, CHITRADURGA DISTRICT, ALSO R/AT C/O RAMASWAMY, LOHIT NAGAR, NELAMANGALA TALUK, BANGALORE RURAL DISTRICT-562123.
(BY SRI. KALYAN R, ADVOCATE) AND 1. VENKATASWAMY S/O MUNISHAMAPPA, AGED MAJOR, RESIDENT OF NO.7977, 10TH MAIN ROAD, 3RD CROSS, SHUBHASH NAGAR, ...APPELLANT NELAMANGALA TOWN, BANGALORE RURAL DISTRICT-562123.
2. THE MANAGER RELIANCE GENERAL INSURANCE COMPANY LTD., NO.28, 5TH FLOOR CENTENARY BUILDING, M.G.ROAD, BANGALORE-560001.
…RESPONDENTS (BY SRI. H S LINGARAJ, ADVOCATE FOR R2 R1 – SERVED UNREPRESENTED) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 08.11.2013 PASSED IN MVC NO.3870/2012 ON THE FILE OF THE XXI ACMM & XXIII A.S.C.J., BENGALURU, ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The claimant is in appeal under Section 173(1) of the Motor Vehicles Act, being aggrieved by the judgment and award dated 08/11/2013 in M.V.C.No.3870/2012 on the file of the XXI ACMM & XXIII A.S.C.J, Bengaluru.
2. The claim petition was filed under Section 166 of the Motor Vehicles Act, claiming compensation for the accidental injuries suffered in a road traffic accident. It is stated that on 19-6-2012, when the claimant was travelling as an inmate in Auto bearing Reg.No.KA- 52:5450, the driver of the Auto drove the same in a rash and negligent manner and applied sudden break, due to which the auto turtled. Due to the said impact, the claimant sustained grievous injuries. Immediately, he was taken to Government Hospital, Nelamangala and after first aid, he was shifted to J.P.Hospital, Nelamangala wherein, he took treatment as inpatient for three days.
3. On issuance of notice, respondent Nos.1 & 2 appeared and filed their written statement. Respondent No.1-owner contended that the accident is not due to rash and negligent driving of the driver of the Auto. Further stated that the vehicle was insured with respondent No.2- insurer. Respondent No.2-insurer in its statement contended that the Auto is not at all involved in the accident and there was no negligent act on the part of the driver of the Auto. It is further stated that the claimant was not travelling in the said Auto. It is also stated that the driver of the Auto had no valid ad effective driving licence as on the date of accident. There is violation of terms and conditions of the policy. Hence, prayed to dismiss the claim petition.
4. The claimant examined himself as PW-1 and Doctor as PW-2, apart from marking documents Exs.P-1 to P-13. Respondents examined RW-1 & RW-2, apart from marking documents Exs.R-1 to R-3.
5. The Tribunal on appreciating the material on record, awarded total compensation of Rs.48,610/- with interest at the rate of 6% per annum from the date of petition till its
Further, the Tribunal saddled the liability on respondent No.1-owner absolving the liability of the insurer on the
Aggrieved by the quantum of compensation awarded by the Tribunal as well as saddling liability on respondent No.1-owner, the claimant is before this Court in this appeal.
6. Heard the learned counsel for the appellant and learned counsel for the respondent-Insurer. Perused the material on record including the lower court records.
7. Learned counsel for the appellant would submit that the Tribunal committed an error in saddling the liability on respondent No.1-owner. He further submits that the driver of the Auto had licence to drive three wheeler-Non Transport vehicle, which is placed on record as Ex.R2. It is his further submission that a person who possesses driving licence to drive Non-Transport Vehicle could also drive the Transport Vehicle of the same category. Further, the learned counsel submits that in the instant case, the driver who possessed a licence to drive Non-Transport Vehicle, was driving three wheeler-Transport Vehicle. He further relied on the decision of the Hon’ble Apex Court in the case of MUKUND DEWANGAN Vs. ORIENTAL INSURANCE CO. LTD., reported in (2017) 14 SCC 663 and submits that the liability be shifted to respondent No.2-insurer. With regard to the quantum of compensation, the learned counsel submits that the same is on the lower side. Further, it is contended that the claimant has sustained fracture of pubic rami left with abrasion over left knee and he was inpatient for three days. The Tribunal failed to award any compensation on the head of ‘Amenities’. It is further submitted that the Doctor has stated that the claimant suffers from 13% partial disability. But the Tribunal has not assessed the disability to award compensation on the head of ‘Loss of income due to disability’, which the Tribunal ought to have assessed. Thus, he prays for allowing the appeal.
8. Per contra, learned counsel for the respondent– Insurer would submit that the Tribunal rightly saddled the liability on respondent No.1-owner. He further submits that admittedly, the driver of the Auto was not possessing licence to drive Transport Vehicle as on the date of accident. With regard to quantum of compensation, learned counsel submits that the Tribunal rightly awarded compensation of Rs.48,610/-, which needs no interference. It is his further submission that the Doctor evidence is clear that the claimant suffers only 13% partial disability, which means it is not a permanent disability. Partial disability means it would be for a certain period and thereafter it would not affect the claimant. Thus, he prays for dismissal of the appeal.
9. Having heard the learned counsels for the parties and on perusal of the material on record including the lower court records, the following points would arise for consideration in the facts and circumstances of the case.
1) Whether the Tribunal is justified in saddling the liability on respondent No.1-owner of the vehicle absolving the liability of the respondent No.2- insurer?
2) Whether the claimant would be entitled for enhanced compensation?
Answer to the above points would be in the negative and affirmative respectively for the following reasons:
10. The accident occurred on 19-6-2012 involving Auto bearing Reg.No.KA-52:5450 and the accidental injuries suffered by the claimant are not in dispute in this appeal. The claimant’s appeal is with regard to the saddling of liability on respondent No.1-owner as well as for enhancement of compensation. The Tribunal saddled the liability on respondent No.1-owner on the ground that the driver of the Auto did not possess a valid and effective driving licence as on the date of accident. The insurer has placed on record Ex.R2-copy of driving licence. Ex.R2 discloses that the driver of the Auto was possessing licence to drive LMV-3 Wheeler-Non Transport Vehicle, which means that as on the date of accident, the driver of the Auto was possessing licence to drive LMV-Non Transport. The Hon’ble Apex Court in the case of MUKUND DEWANGAN Vs. ORIENTAL INSURANCE CO. LTD., reported in (2017) 14 SCC 663, has held that a person who possesses driving license to drive LMV-Non Transport could also drive Transport Vehicle of the same category. In the instant case, the driver of the Auto possessed a licence to drive three wheeler-Non Transport vehicle and at the time of accident, he was driving three wheeler Auto- Transport Vehicle, which means he was driving the three wheeler-Non Transport Vehicle of the same category. Hence, I am of the view that the insurer is liable to indemnify respondent No.1-owner. Thus, the liability is shifted from respondent No.1-owner to respondent No.2- insurer.
11. With regard to the quantum of compensation, the compensation awarded by the Tribunal is on the lower side, when compared to the injuries sustained and treatment taken by the claimant. The Doctor-PW-2 in his evidence stated that the claimant sustained fracture of pubic rami left with abrasion over left knee and suffers 35% disability to left lower limb and 13% disability to the whole body. The disability stated by the Doctor-PW-2 is partial disability and it is not a permanent disability. As the disability stated by the Doctor at 13% is partial disability, the Tribunal is justified in not assessing the whole body disability for the purpose of awarding compensation on the head of ‘Loss of income due to disability’. But looking to the injuries and pain and agony suffered by the claimant, the Tribunal ought to have awarded compensation on the head of ‘Loss of Amenities’ as the claimant has suffered fracture pubic rami left with abrasion over left knee with other three minor injuries. Looking to the injuries suffered and treatment taken by the claimant, I am of the view that the claimant would be entitled for Rs.30,000/- on the head of ‘Loss of amenities’. Further, the claimant was inpatient for three days for taking treatment for accidental injuries and he would have been out of employment for minimum of three months. Thus, the compensation awarded on the head of ‘Loss of income during laid up period’ would be for three months. The accident is of the year 2012 and the notional income of the claimant would be assessed at Rs.7,000/- per month. Thus, the claimant-appellant would be entitled for modified enhanced compensation as follows:
Amount in (Rs.)
12. Thus, the claimant would be entitled for enhanced modified compensation of Rs.94,610/- as against Rs.48,610/- with interest at the rate of 6% per annum from the date of petition till its realization as awarded by the Tribunal.
The judgment and award passed by the Tribunal is modified to the above extent. Accordingly, the appeal is allowed in part.
Sd/- JUDGE SMJ