IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 2ND DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MFA NO.10307 OF 2013 (MV) CONNECTED WITH MFA NO.10314 OF 2013 (MV) IN MFA NO.10307/2013 BETWEEN DINESH KINI, S/O. GANAPATHI KINI, AGED ABOUT 39 YEARS, R/AT SHANTHALA, ALEVOOR VILLAGE, UDUPI TALUK AND DISTRICT.
... APPELLANT (BY SRI. PRASAD HEGDE K., ADVOCATE) AND 1. THE NATIONAL INSURANCE CO. LTD., NEW DELHI – REPRESENTED BY ITS THE DIVISIONAL MANAGER, DIVISIONAL OFFICE, 1ST FLOOR, SHANKAR BUILDING, MOSQUE ROAD, UDUPI-576 101.
2. SUDHA B., W/O. DR. K. SHIVASHANKAR, AGED ABOUT 31 YEARS, R/AT DEVI KRIPA HOUSE, MIG 15, 6TH MAIN ROAD, SHIVALLI VILLAGE, UDUPI TALUK AND DISTRICT-576 101.
... RESPONDENTS (BY SRI. K.DHIRAJ KUMAR, ADVOCATE FOR R1; R2-SERVED) THIS MFA FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 30.08.2013 PASSED IN MVC NO.40/2012 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND ADDITIONAL MACT, UDUPI, AWARDING COMPENSATION OF RS.99,500/- WITH INTEREST @8% P.A. FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT.
IN MFA NO.10314/2013 BETWEEN:
SUDHA B., AGED ABOUT 30 YEARS, W/O. DR. SHIVASHANKAR, R/O.”DEVIKRIPA” HOUSE, MIG 15, 6TH MAIN, SHIVALLI VILLAGE, UDUPI, UDUPI TQ AND DISTRICT, PIN CODE-576 102. ….APPELLANT (BY SRI.THEJAS RAI K., ADVOATE) AND:
1. DINESH KINI, S/O. GANAPATHI KINI, R/AT SHANTHALA, ALEVOOR VILLAGE, UDUPI DISTRICT-576 102.
2. THE NATIONAL INSURANCE CO. LTD., NEW DELHI – REP. BY ITS DIVISIONAL OFFICE, SHANKAR BUILDING, NEAR SHANKAR VITAL GARAGE, MOSQUE ROAD, UDUPI, UDUPI TQ & DISTRICT-576 102.
…RESPONDENTS (BY SRI. K. PRASAD HEGDE, ADVOCATE FOR R1; SRI. K. DHIRJ KUMAR, ADVOCATE FOR R2) THIS MFA FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 30.08.2013 PASSED IN MVC NO.40/2012 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND ADDITIONAL MACT, UDUPI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFAs COMING ON FOR FURTHER HEARING THIS DAY THE COURT DELIVERED THE FOLLOWING:
JUDGMENT MFA No.10307/2013 is filed by the Insured and MFA No.10314/2013 is filed by the claimant. Both the appeals are directed against the judgment and award dated 30.08.2013 passed in MVC No.40/2012 on the file of the Prl. Senior Civil Judge and Additional MACT, Udupi, wherein a compensation of Rs.99,500/- has been awarded to the injured-claimant for the injures sustained by her in a road traffic accident.
2. I have heard the learned counsel appearing for the appellants and the learned counsel appearing for the respondent No.1-Insurance Company.
3. The case of the claimant is that on 17.08.2011 at about 8.50 a.m., when she was riding Hero Honda Pleasure two wheeler bearing registration No.KA-20-V-7933 from her residence to the place of work at Manipal and when she reached near Rajeev Nagar Cross, 80-Badagubettu, the driver of the car bearing registration No.KA-20-A-4267 after giving indication to the appellant to overtake, suddenly took a right turn and dashed the said car against the vehicle of the appellant. On account of which, she fell on the road and sustained injuries and her vehicle also got damaged. Immediately, she was shifted to KMC Hospital, Udupi, wherein she has taken treatment as inpatient.
4. It is the further case of the appellant that she was working as a Technician at TAPMI (MAHE) and earning a sum of Rs.7,000/- per month and due to the accidental injuries, she has suffered permanent disability and not in a position to work and she has also incurred medical expenses etc., as she was an inpatient in the hospital.
5. Learned counsel for the claimant would submit that the total compensation awarded in the facts and circumstances of the case is not commensurate with the injuries sustained by the claimant and hence, he seeks to allow the appeal.
6. The Tribunal having considered the oral and documentary evidence on record, awarded a total compensation of Rs.99,500/- with interest at 8% per annum from the date of petition till the date of deposit. Further exonerated the Insurer from its liability holding that the driver of the Insured vehicle was not holding a valid and effective driving license as on the date of the accident and since there is violation of condition of the policy, the Tribunal directed the owner of the offending vehicle to pay the compensation.
7. Assailing the aforesaid judgment and award passed by the Tribunal thereby fastening the liability on the owner of the vehicle, the learned counsel appearing for the appellant/Insured in MFA No.10307/2013 would contend that the driver of the offending vehicle was having a valid and effective driving license to drive an LMV (NT) which is sufficient to drive the type of vehicle which was involved in the accident. He would submit that no separate Endorsement is required to drive a transport vehicle in view of the decision of the Hon’ble Apex Court in the case of Mukund Devangan Vs. Oriental Insurance Company Limited reported in AIR 2017 SCC 663 and therefore he submits that the Insurance Company is liable to pay the compensation and accordingly seeks to allow the appeal.
8. According to the claimant, she was working as a Technician at TAPMI (MAHE) and earning a sum of Rs.7,000/- per month and due to the accidental injuries and disability suffered, she has lost the earning capacity. The claimant has been examined herself as PW1. Her evidence discloses that she has been continued in the said job and she has also received the salary during the period of treatment and her salary was even increased and she was getting salary of Rs.9,700/- per month and her job also got permanent. In view of the same, it cannot be said that the claimant has lost the earning capacity on account of the disability suffered by her.
9. On account of the accident, the claimant has suffered the following multiple injuries:
(1) Multiple superficial abrasions over left upper limb.
(2) Multiple superficial abrasions over left knee and foot.
(3) 2 x 2 c.m. abrasion over right knee.
(4) Comminuted fracture of left olecranon process of ulna-grievous.
The evidence of PW2 – doctor would disclose that the claimant underwent open reduction and internal fixation with locking compression plate on 19.08.2011. She was an inpatient from 17.08.2011 to 25.08.2011. She was later reviewed in the OPD on 07.09.2011 and skin staples were removed, again on 14.09.2011, the POP slab was removed. An active elbow mobilization and physiotherapy was started. She was followed up in OPD on 02.11.2011, 16.11.2011 and 29.02.2012. she was examined by PW2 on 29.08.2012. The doctor has assessed the permanent physical impairment and loss of physical function to left upper at 16%. PW2 has also deposed that she may need an approximate amount of Rs.20,000/- for removal of implants.
10. The Tribunal has awarded a sum of Rs.30,000/- towards pain and suffering, which is on the lower side and the same is enhanced to Rs.40,000/-. The Tribunal has awarded a sum of Rs.15,000/- towards loss of amenities. Considering the medical evidence on record, namely nature of injuries sustained, the disability suffered and the period of treatment etc., the same is enhanced to Rs.35,000/-.
11. The Tribunal has taken into consideration the medical bills which are produced and marked as Ex.P6 for Rs.39,698.83/-. After noticing that some of the medical bills issued for the period of inpatient which was already considered as the inpatient bills and deducting the same, the Tribunal has awarded a sum of Rs.35,000/- towards medical expenses which is just and proper.
12. The Tribunal has awarded a total sum of Rs.4,500/- towards nourishment, conveyance and attendant charges. The same is enhanced to Rs.10,000/-. In all, the claimant is entitled for a total compensation of Rs.1,35,000/- as against Rs.99,500/- awarded by the Tribunal.
13. It is the contention of the learned counsel for the Insured that the driver of the offending vehicle was holding a valid driving license to drive LMV-non transport car and therefore, he submits that the Tribunal was not justified in fastening the liability on the Insured.
14. Learned counsel for the Insurer would contend that the vehicle involved in the accident is a taxi which is a commercial vehicle and therefore in the absence of any endorsement in the driving license to drive a transport vehicle, the Tribunal was justified in fastening the liability on the owner of the vehicle. The contention raised by the learned counsel is no longer res integra as the same is already decided by the Hon’ble Apex Court in the case of Mukund Dewangan (supra). The same view is also reiterated by the Hon’ble Supreme Court in the case of Jagadeesh Kumar Sood vs. United India Insurance Company Limited and others reported in 2018 (2) SC 440.
15. It is not disputed by the learned counsel for the Insurance Company that the unladen weight of the offending vehicle is less than 7500 kgs. The perusal of the B-Register extract shows that the unladen weight of the offending vehicle is 740 kgs. In that view of the matter and in view of the judgments of the Hon’ble Apex Court noted Supra, the Tribunal fastening the liability on the owner of the vehicle is liable to be set aside. Accordingly, I pass the following:
ORDER MFA No.10307/2013 is allowed. MFA No.10314/2014 is allowed in part.
The judgment and award dated 30.08.2013 passed in MVC No.40/2012 on the file of the Prl. Senior Civil Judge and Additional MACT, Udupi is hereby modified.
The appellant-claimant is entitled for a total compensation of Rs.1,35,000/- as against Rs.99,500/- awarded by the Tribunal.
Respondents No.1 and 2 before the Tribunal are jointly and severally liable to pay the compensation.
The enhanced compensation shall carry interest at 6% per annum from the date of petition till its realization.
Respondent No.2-Insurance Company is directed to deposit the entire amount within four weeks from the date of receipt of a copy of this judgment.
The statutory amount in deposit in MFA No.10307/2013 shall be refunded to the appellant.
Sd/- JUDGE snc