IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 05TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE S.G.PANDIT M.F.A.No.4380/2015 C/W M.F.A.NO.5030/2015 [MV] M.F.A.No.4380/2015 BETWEEN:
THE CLAIM MANAGER TATA AIG GENERAL INSURANCE COMPANY LIMITED, II FLOOR JAMBUKESHWARA ARCADE, NO.69 MILLERS ROAD BANGALORE-560 052. (BY SRI.O MAHESH, ADV.) AND:
1. ANJANAMURTHY H S AGED ABOUT 21 YEARS S/O SANJEEVAIAH R/AT HOSAPALYA DODDASOMANAHALLI POST KASABA HOBLI MAGADI TALUK RAMANAGARAM DISTRICT.
2. LALITHAMMA MAJOR W/O ASHWATHANARAYAN ...APPELLANT R/AT MARENAHALLI BSK 3RD STAGE BANGALORE-560 085.
3. NEW INDIA ASSURANCE CO. LTD., MOTOR TP HUB, 2ND FLOOR MAHALAKSHMI CHAMBERS M G ROAD BANGALOE-560 001.
4. M N BASAVARAJU MAJOR S/O NANJUNDAIAH ANJANEYA TEMPLE ROAD VIJAYAPURA CHIKKAMAGALUR-577 101.
…RESPONDENTS (BY SRI.N R RANGEGOWDA, ADV. FOR R1 SRI K. POORNABODHA RAO, ADV. FOR R3 R2 & R4 – SERVICE OF NOTICE H/S V/O DT:04.02.2019) THIS M.F.A. FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 17.04.2015 PASSED IN MVC.NO.791/2011 ON THE FILE OF THE 18TH ADDITIONAL JUDGE, COURT OF SMALL CAUSES, MEMBER, MACT – 4, BENGALURU, AWARDING A COMPENSATION OF RS.1,55,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT.
M.F.A.NO.5030/2015 BETWEEN:
1. ANJANAMURTHY H S S/O LATE SANJEEVAIH NOW AGED ABOUT 23 YEARS R/AT HOSAPALYA DODDASOMANAHALLI POST KASABA HOBLI MAGADI TALUK RAMANGARAM DISTRICT-562131.
(BY SRI.RANGEGOWDA N R, ADV.) AND:
1. LALITHAMMA W/O ASHWATHNARAYANA AGED MAJOR R/AT MARENAHALLI BSK 3RD STAGE BANGALORE-560 085.
2. THE MANAGER TATA AIG GEN.INS. CO. LTD., II FLOOR JAMBUKESHWARA ARCADE NO.69, MILLERS ROAD BANGALORE-560 052.
3. NEW INDIA ASS. CO. LTD., MOTOR TP HUB 2ND FLOOR MAHALAKSHMI CHAMBERS M.G. ROAD BANGALORE-560 001.
4. M N BASAVARAJU S/O NANJUNDAIAH AGED MAJOR ANJANEYA TEMPLE ROAD VIJAYAPURA CHIKKAMAGALUR-577 101.
...APPELLANT …RESPONDENTS (BY SRI.O MAHESH, ADV. FOR R2 R1, R3 & R4- NOTICE D/W V/O DT:19.01.2016) THIS M.F.A. FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 17.04.2015 PASSED IN MVC.NO.791/2011 ON THE FILE OF THE 18TH ADDITIONAL JUDGE, COURT OF SMALL CAUSES, MEMBER, MACT – 4, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE M.F.A.s COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T The Tata AIG General Insurance Company Limited, insurer of the offending vehicle and the claimant are in appeal against the judgment and award dated 17.04.2015 passed in MVC No.791/2011 on the file of the Motor Accident Claims Tribunal and Court of Small Causes, Bangalore (hereinafter referred to as 'the Tribunal' for short).
2. The insurer is in appeal in MFA No.4380/2015, aggrieved by the fastening the liability on it and for non- consideration of contributory negligence on the part of the driver of the Maxi Cab, whereas the claimant is in appeal in MFA No.5030/2015, not being satisfied with the quantum of compensation awarded and praying for enhancement of compensation.
3. Parties to the appeal would be referred to as per their ranking before the Tribunal.
4. The claim petition was filed under Section 166 of the Motor Vehicles Act, seeking compensation for the injuries sustained in a road traffic accident. It is stated that on 10.11.2010, when the claimant was traveling in an auto rickshaw bearing registration No.MH-02/QA- 1533 on NH4, Bangalore-Tumkur Highway, driver of the said auto drove the same in a high speed and rash and negligent manner and dashed against the Maxi Cab bearing registration No.KA-09/A-9207, due to which, the claimant sustained injuries. It is stated that he was aged about 19 years and he was working as a coolie, earning Rs.6,000/- p.m.
5. On issuance of notice, respondent No.1 and 4 owners of the vehicles remained ex-parte and respondent Nos.2 and 3 insurers of both the vehicles appeared before the Tribunal and filed their objection statement. Respondents No. 2 and 3 contended that the drivers of respective vehicles had no valid and effective driving license as on the date of accident. But admitted the issuance of insurance policy in respect of both the vehicles in question.
6. The claimant examined himself as P.W.1 and also examined the doctor as P.W.2 apart from marking Ex.P1 to Ex.P12. The respondents examined R.W.1 and R.W.2 on their behalf and marked the documents as Ex.R1 to Ex.R11.
7. The Tribunal, on appreciation of material on record awarded total compensation of Rs.1,55,000/- with interest at the rate of 6% p.a., from the date of petition till realization, on the following heads:
4.Loss of earnings during the period of treatment ::Rs. 15,000/-
5.Loss of future earnings due to disability ::Rs. 54,000/-
Total Rs.1,55,000/-
While awarding the above compensation, the Tribunal assessed the income of the claimant at Rs.5,000/- p.m., and assessed the whole body disability at 5% and saddled the liability on respondent No.2/insurer of the offending auto rickshaw bearing registration No. MH-02/QA-1533. The claimant is in appeal, not being satisfied with the quantum of compensation awarded by the Tribunal, whereas respondent No.2/insurer is in appeal urging the ground of non-consideration of contributory negligence and saddling the liability on them.
8. Heard the learned counsel for the parties and perused the material on record, including the lower court records.
9. The second respondent/insurer would submit that the Tribunal committed an error in saddling liability on it and failed to consider the contributory negligence on the part of the driver of Maxi Cab bearing registration No.KA-09/A-9207. Learned counsel refers to Ex.P4- copy of mahazar and contends that the accident had taken place in the middle of the road and P.W.1/claimant in his evidence has clearly stated that the Maxi Cab dashed to the auto rickshaw and he sustained injuries. The Tribunal, without appreciating the evidence and material on record, erroneously saddled the liability on the second respondent/insurer of the passenger auto, which needs to be set aside.
Further, the learned counsel for the second respondent/insurer submits that the Tribunal ought not to have saddled the liability on the second respondent/insurer, since, as on the date of accident, the passenger auto had no permit to ply at the place where the accident had occurred. It is his submission referring to Ex.R2-permit, that the passenger auto was permitted to ply within the City of Bangalore and it had no permit to ply on NH-4 Bangalore-Tumkur road at K.G.Srinivasapura gate, Nelamangala. Thus, he submits that it is not a case of violation of permit conditions but it is a case of ‘no permit to ply’ at the place where the accident had occurred.
10. With regard to quantum of compensation is concerned, the learned counsel for the second respondent/insurer submits that the compensation awarded by the Tribunal is just compensation, which needs no interference. He submits that the doctor-
P.W.2 opined that the claimant suffers from 20.9% disability to left upper limb and 7% disability to the whole body. The Tribunal, looking to the medical evidence and nature of injuries suffered by the claimant has rightly assessed the whole body disability at 5%, which needs no interference. Thus, prays for allowing the appeal filed by the insurer and dismissing the appeal filed by the claimant for enhancement of compensation.
11. Per contra, learned counsel for the claimant would submit that the Tribunal rightly saddled the liability on the second respondent/insurer. The accident had taken place solely due to the negligence on the part of the driver of the passenger auto. Charge sheet is filed against the driver of the auto and based on the material evidence of P.W.1, the Tribunal has rightly held that the accident had occurred solely due to the negligence of driver of the passenger auto. With regard to contention that the offending auto rickshaw had no valid permit as on the date of accident, and it had permit only to ply within the City of Bangalore, but the accident had taken place out side the permitted plying area, he relies upon the decision of the Hon'ble Apex Court in the case of AMRIT PAUL SINGH AND ANOTHER v/s. TATA (AIG) GENERAL INSURANCE CO. LTD., AND OTHERS reported in (2018) 7 SCC 558 and submits that it is a case of ‘Pay and Recovery’. The insurer shall first pay the compensation amount and as per the above said decision, the insurer would be at liberty to recover the same from the owner of the passenger auto.
12. With regard to enhancement of compensation, learned counsel submits that the assessment of the income by the Tribunal at Rs.5,000/- p.m., is on the lower side. The accident is of the year 2010. A coolie would earn more than Rs.200/- per day, which would be nearly Rs.6,000/- p.m. Thus, he submits that the income of the claimant is to be enhanced partially. Learned counsel further submits that the claimant has suffered fracture of radius distal end of left forearm. The doctor in his evidence has stated that the claimant has suffered 20.9% disability to the left upper limb and 7% to the whole body. But, the Tribunal, without there being any reason assessed the whole body disability at 5%, which needs to be enhanced. It is also his submission that the compensation on other heads is also on the lower side, which needs to be enhanced. The claimant was inpatient for 8 days and the Tribunal has failed to award any compensation on the head conveyance, attendant charges, food and diet, to which, the claimant would be entitled. Thus, he prays for enhancement of compensation, while dismissing the appeal filed by the insurer.
13. On hearing the learned counsel for the parties and on perusal of the material on record, the following points would arise for consideration:
(i) Whether the Tribunal is justified in saddling the liability on the second respondent/insurer of the passenger auto?
(ii) Whether the claimant would be entitled for enhanced compensation?
14. Answer to both the points is in the affirmative for the following reasons:
The accident occurred on 10.11.2010 involving the auto rickshaw bearing registration No.MH-02/QA-1533, Maxi Cab bearing registration No.KA-09/A-9207 and the accidental injuries suffered by the claimant are not in dispute in this appeal. The insurer is before this Court, aggrieved by saddling of liability on it and the claimant is in appeal praying for enhancement of compensation. The insurer contended that the Tribunal could not have saddled the entire liability on it, since the driver of the Maxi Cab had also contributed his negligence towards occurrence of accident. To appreciate the said contention, it is necessary to look into Ex.P2, Ex.P4 and Ex.P5. Ex.P2 is the complaint lodged on the date of accident. Complaint is by the driver of Maxi Cab who stated that the driver of the auto rickshaw bearing registration No.MH-02/QA-1533 came in a rash and negligent manner, without giving any signal and without noticing the vehicles coming on NH-4, suddenly turned from Tumkur road to Bangalore road and dashed to the Maxi Cab, due to which, both the Maxi Cab and auto turned turtle. Ex.P4 is the mahazar which indicates that place of occurrence of accident as NH-4, double road and the accident had taken place on the road leading to middle of Bangalore- Tumkur road. Ex.P5-IMV report would indicate damage to both the vehicles involved in the accident. P.W.1 in his cross-examination has deposed that the Maxi Cab dashed the auto and he sustained injuries. He also stated that he had lost conscious immediately on occurrence of accident.
15. Admittedly, the charge sheet is filed against the driver of the auto rickshaw. From Ex.P4-mahazar, it could be said that the accident had taken place on the junction of road leading to K.G.Srinivasapura Gate from NH-4. Looking to the entire evidence on record and Ex.P4, I am of the view that the Tribunal has rightly held that the accident had occurred solely due to the negligence on the part of the driver of the auto rickshaw, there is no contributory negligence on the part of the driver of the Maxi Cab bearing registration No.KA-09/A-9207.
16. Nextly, learned counsel for the insurer contended that the auto rickshaw had no permit as on the date of accident to ply in the area at which the accident had occurred. But, it is an admitted fact that the auto rickshaw had permit to ply within the City of Bangalore. Ex.R2/permit would establish the same. The accident had occurred on NH-4/Bangalore-Tumkur highway at K.G.Srinivasapura gate, which is outside the limits of Bangalore city. Admittedly, the auto rickshaw had no permit to ply in that area. The Hon'ble Supreme Court has made it clear that whether the vehicle had permit or no permit, it is for the insurer to pay the compensation at the first instance with liberty to recover the same from the owner of the vehicle. The Hon’ble Supreme Court in the case of AMRIT PAUL SINGH case (supra) at paragraph 24 of the judgment has held as follows:
24. In the case at hand, it is clearly demonstrable from the materials brought on record that the vehicle at the time of the accident did not have a permit. The appellants had taken the stand that the vehicle was not involved in the accident. That apart, they had not stated whether the vehicle had temporary permit or any other kind of permit. The exceptions that have been carved out under Section 66 of the Act, needless to emphasise, are to be pleaded and proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental statutory infraction. We are disposed to think so in view of the series of exceptions carved out in Section 66. The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in Swaran Singh and Lakhmi Chand in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the "Tripitaka", that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the tribunal as well as the High Court had directed the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the principles stated in Swaran Singh and other cases pertaining to pay and recover principle.”
Thus, I am of the view that in the present case, the insurer is liable to pay the compensation to the claimant at the first instance and to recover the same from the owner of the passenger auto.
17. Learned counsel for the claimant submits that the compensation awarded by the Tribunal is on the lower side and the income assessed by the Tribunal is also on the lower side. The claimant was working as coolie and no material is placed on record to indicate his exact income. In the absence of any material, the Tribunal has assessed the income of the claimant notionally at Rs.5,000/-p.m. Looking to the standard of living and price index, a coolie would have earned minimum of Rs.200/- per day in the year 2010. This Court and Lok Adalath, while settling the accident claims of the year 2010, would normally assess notional income at Rs.5,500/- p.m. In the instant case also, in the absence of any material to indicate the exact income of the claimant, I deem it appropriate to assess the income of the claimant at Rs.5,500/- p.m.
18. Further, learned counsel submits that the claimant has suffered fracture of radius distal end of left forearm. He has placed on record, Ex.P3-wound certificate and Ex.P11-OPD Card which indicate the injuries sustained and treatment taken by the claimant. The doctor in his evidence has stated that the claimant suffers from 20.9% disability to the left upper limb and 7% to the whole body. In his cross-examination, P.W.2 doctor has stated that fracture is united. Taking note of the nature of injuries, the Tribunal has rightly assessed the whole body disability at 5%, which needs no interference. The claimant stated that he was inpatient for 8 days for treatment. The Tribunal has failed to award any compensation on the head of conveyance, attendant charges, food and diet. Taking into consideration that the claimant was inpatient for 8 days and considering the nature of injuries, I am of the view that the claimant would be entitled for Rs.10,000/- on the said head. Thus the claimant would be entitled to the following modified compensation:
1. Pain and suffers :: Rs. 40,000/-
2. Loss of amenities and happiness :: Rs. 25,000/-
3.Medical and incidental charges :: Rs. 21,000/-
4. Loss of earning during the period of treatment (5500x3) :: Rs. 16,500/-
5. Loss of future earning (5500x12x18x5/100) :: Rs. 57,400/-
6. Conveyance, attendant charges, Food and nourishment :: Rs. 10,000/-
Total Rs.1,69,900/-
Thus, the claimant would be entitled to total compensation of Rs.1,69,900/- which is rounded off to Rs.1,70,000/- with interest at the rate of 6% p.a., from the date of petition till realization, as against Rs.1,55,000/- awarded by the Tribunal.
Accordingly, the appeal of the claimant in MFA No.5030/2015 is allowed in part. The judgment and award dated.17.04.2015 passed in MVC No.791/2011 on the file of the Motor Accident Claims Tribunal and Court of Small Cause, Bangalore is hereby modified to the above extent. The claimant would be entitled to enhanced compensation of Rs.15,000/-. MFA No.*4380/2015 filed by the second respondent/insurer is dismissed.
The amount in deposit in MFA No.*4380/2015 be transmitted to the concerned Tribunal, forthwith.
Sd/-
JUDGE mpk/-* CT:bms * Corrected vide chamber order dated :17-12-2019