IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5TH DAY OF APRIL, 2019 BEFORE THE HON’BLE Dr. JUSTICE H.B. PRABHAKARA SASTRY M.F.A.No.9726 OF 2012 (MV) c/w.
M.F.A.No.10192 OF 2012 (MV) M.F.A.No.9726 OF 2012 (MV) BETWEEN:
Eramma W/o. Venkatesh, Aged about 36 years, Coolie, R/o. Jagaluru Gollarahatty village, Jagalur Taluk, Davanagere District, 577 501.
(By Sri. R. Shashidhara, Advocate) AND:
1. Sri. K. Chidanandachari, S/o. Kameshappa, Age Major, Driver of Auto Bearing No.KA-17/B-589 R/o. Near Basaveswara Talkies, Chitradurga – 577 506.
2. M. Malleshi S/o. Marappa, …Appellant Age Major, Owner of Auto Bearing No. KA-17/B-589, R/o. Bharmasamudra, Jagalur Taluk – 577 501.
3. The Divisional Manager, ICICI Lambord General Insurance Co.Ltd., Davanagere – 577 501.
…Respondents (By Sri. A.M. Venkatesh, Advocate for R-3;
R1 & R2- notice dispensed with vide order dt.25-02-2014) *** This MFA is filed under Section 173(1) of Motor Vehicles Act against the Judgment and award dated 02-08-2012 passed in MVC No.29/2011 on the file of the Senior Civil Judge and Chief Judicial Magistrate, Additional Motor Accident Claims Tribunal, Chitradurga, Partly allowing the claim petition for compensation and seeking enhancement of compensation.
M.F.A.No.10192 OF 2012 (MV) BETWEEN:
The Divisional Manager, M/s. ICICI Lambord General Insurance Company Limited, Davanagere.
Present Address:-
M/s. ICICI Lombard General Insurance Company Limited, No.89, 2nd Floor, S.V.R. Complex, Hosur Main Road, Madiwala, Bangalore – 560 068. Represented by its Manager – Legal.
(By Sri. A.M. Venkatesh, Advocate) AND:
1. Eramma W/o. Venkatesh, Aged about 35 years, Occ: Coolie, R/o. Jagaluru Gollahatti village, Jagalur Taluk – 577 528, Davanagere District.
2. K. Chidananachari, S/o. Kameshappa, Driver of auto-rickshaw bearing No.KA-17/B-589 R/o. Near Basaveswara Talkies, Chitradurga – 577 501.
3. M. Malleshi S/o. Marappa, R/o. Bharamasamudra, Jagalur Taluk – 577 528.
Owner of Auto-rickshaw Bearing No.KA-17/B-589, (By R1- served; R2 & R3- notice held sufficient vide order dt.17-11-2015) …Appellant …Respondents This MFA is filed under Section 173(1) of Motor Vehicles Act against the Judgment and award dated 02-08-2012 passed in MVC No.29/2011 on the file of the Senior Civil Judge and Chief Judicial Magistrate, Additional Motor Accident Claims Tribunal-IV, Chitradurga, awarding a compensation of `35,000/- with future interest at 6% per annum from the date of petition till realization.
These MFAs. coming on for Admission this day, the Court delivered the following:
J U D G M E N T Both these appeals have been filed against the judgment and award dated 02-08-2012 passed in M.V.C.No.29/2011 by the Principal Civil Judge (Sr.Dn.) & Additional Motor Accident Claims Tribunal-IV, Chitradurga (hereinafter referred to as “Tribunal” for brevity).
M.F.A.No.9726/2012 is filed by the claimant in the Tribunal seeking enhancement of compensation awarded by the Tribunal; on the other hand, M.F.A.No.
10192/2012 has been filed by the Insurance Company challenging the liability fastened upon it by the Tribunal.
2. The summary of the case of the claimant in the Tribunal is that, on 08-08-2010, while she was proceeding in an autorickshaw bearing Registration No.KA-17/B-589 along with her two coolies from Jagalur to Bharamasamudra, at about 8:30 a.m., the driver of the said autorickshaw drove the same at a high speed and in a rash and negligent manner, due to which, it turtled and toppled down on the side of the road resulting in an accident, wherein she (claimant) sustained grievous injuries. Immediately, she was shifted and admitted to a Hospital at Jagalur.
It is also the case of the claimant that for her medical treatment, she has spent not less than a sum of `75,000/- and due to the injuries sustained by her, she has suffered disability and inconvenience. She has claimed a compensation of a sum of `6.00 lakhs from the respondents holding them jointly and severally liable in their capacity as driver, owner and insurer of the alleged offending vehicle respectively.
3. Before the Tribunal, the claimant got herself examined as PW-1 and one Dr.G. Shivaprakash, as PW-2 and got marked documents from Exs.P-1 to P-41. On behalf of the respondent-Insurance Company, one Sri R. Kiranchand, its Officer from Legal Department was examined as RW-1 and the driver of the offending autorickshaw, i.e. Sri.K. Chidananda Murthy, was examined as RW-2 and documents at Exs.R-1 to R-3 were marked.
4. After analysing the evidence and the materials placed before it, the Tribunal has awarded the compensation under the following heads with the sum shown against them:
5. The Tribunal awarded compensation of a sum of `35,000/- with interest at 6% per annum thereupon, holding the owner and Insurer jointly and severally liable to pay the said compensation and directed the Insurer to indemnify the insured – owner of the offending vehicle by depositing the said compensation amount along with future interest at the rate of 6% p.a. It is against the said judgment and award passed by the Tribunal, the claimant has filed M.F.A.No.9726/2012, seeking enhancement of compensation and against the very same judgment and award, the Insurer has filed M.F.A.No.10192/2012, challenging the liability fastened upon it.
6. Though these appeals are coming on for admission, with the consent from both sides, they are taken up for final disposal.
7. Heard the arguments from both sides and perused the materials placed before this Court, including the lower court records.
8. Learned counsel for the appellant in M.F.A.No.9726/2012 (claimant) in his argument submitted that the compensation awarded by Tribunal is very meager and considering the facts and circumstances of the case, deserves considerable enhancement in it.
He further submitted that in view of the decision of the Hon’ble Apex Court in the case of Mukund Dewangan Vs. Oriental Insurance Company Limited in Civil Appeal No.5826/2011 dated 03.07.2017, the insurer cannot absolve from its liability since the driver of the offending vehicle who was examined as RW-2 has led his evidence about he possessing of a valid and effective Light Motor Vehicle (LMV) Driving Licence, a copy of which has been produced at Ex.R3.
He also submitted that the evidence of the same driver that at the time of accident, the vehicle was plying within the limits prescribed in the permit has also been not denied by the respondent - Insurance Company.
9. The learned counsel for the appellant in M.F.A.No.10192/2012 (Insurance Company) in his argument submitted that the compensation awarded by the Tribunal under various heads are just and reasonable which do not warrant any enhancement by this Court.
He further submitted that though in view of Mukund Dewangan’s case (supra), he would not press on the driver not possessing the driving licence at the time of driving the vehicle, but there is violation of the condition of the permit, as such, the Insurer cannot be fastened with the liability to pay the compensation amount.
10. A perusal of the evidence of PW-1 - the claimant, the Wound Certificate marked at Ex.P7, the out-patient slip at Ex.P8, and also the case sheet at Ex.P39 would go to show that in the accident, the claimant sustained the following four injuries:-
1) Hemorrhagic contusion in right frontal lobe, acute subdural hemotoma in right fronto temporo parietal convexity;
2) Fracture noted in base spherical extending into left occipital bone;
3) Evidence of bilateral ethemial hemosinus seen;
4) Diffuse cerebral edema.
The Doctor has opined that all the four injuries were grievous in nature.
11. The medical documents further go to show that the claimant was in-patient in Bapuji Hospital at Davanagere and was under treatment for the injuries sustained by her in the accident for not less than a period of seven days. The claimant was suspected with grievous head injury and was diagnosed accordingly. Considering all these aspects, I am of the view that the compensation awarded towards ‘pain and sufferings’ by the Tribunal is on the lower side, as such, to bring it to just and reasonable compensation, it deserves enhancement by a sum of `20,000/-, which I award accordingly.
12. After considering the medical bills and prescriptions produced by the claimant at Exs.P9 to P23 and Exs.P24 to P34, the Tribunal even after noticing that the total amount shown in those medical bills would come to `13,202/-, still, has awarded a sum of `15,000/- as compensation towards ‘medical expenses’. Since the said compensation is based upon actual medical bills and prescriptions produced by the claimant, I do not want to modify the same.
13. Towards ‘conveyance, diet and attendant charges’, the Tribunal has awarded compensation of a sum of `5,000/-. Considering the facts and circumstances of the case and particularly of the fact that due to head injury, the claimant was in-patient in the Hospital for considerable period of not less than seven days, I am of the view that the compensation under the said head deserves enhancement by a sum of `5,000/-, which I grant the same.
14. Considering the facts and circumstances of the case, wherein due to head injury, the claimant has stated that she has lost the amenities in her life and several of her daily routines have been hampered, the argument of the learned counsel for the claimant that the Tribunal has not considered the said aspect as such it has not awarded compensation towards ‘loss of amenities’, which argument I cannot ignore. As such, towards ‘loss of amenities’, I award compensation of a sum of ` 10,000/-.
15. Barring the above, the claimant/appellant is not entitled for compensation under any other heads or for enhancement of compensation under any other heads. Thus, in total, she is entitled for enhancement of compensation in a sum of `35,000/- which is in addition to `35,000/- already awarded by the Tribunal.
16. Regarding the liability fastened upon the insurer is concerned, admittedly, the driver of the alleged offending vehicle had a driving licence to drive the Light Motor Vehicle (LMV) (non-transport) as at the time of the accident which is evidenced in Ex.R3.
In Mukund Dewangan’s case (supra), the Hon’ble Apex Court was pleased to hold as below :
“ Para-46(i) ‘Light motor vehicle’ as defined in section 2(21) of the Act would include a transport vehicle as per the weight prescribed in section 2(21) read with section 2(15) and 2(48). Such transport vehicles are not excluded from the definition of the light motor vehicle by virtue of Amendment Act No.54/1994.
(ii) A transport vehicle and omnibus, the gross vehicle weight of either of which does not exceed 7500 kg. would be a light motor vehicle and also motor car or tractor or a road roller, ‘unladen weight’ of which does not exceed 7500 kg. and holder of a driving licence to drive class of “light motor vehicle” as provided in section 10(2)(d) is competent to drive a transport vehicle or omnibus, the gross vehicle weight of which does not exceed 7500 kg. or a motor car or tractor or road-roller, the “unladen weight” of which does not exceed 7500 kg. That is to say, no separate endorsement on the licence is required to drive a transport vehicle of light motor vehicle class as enumerated above. A licence issued under section 10(2)(d) continues to be valid after Amendment Act 54/1994 and 28.03.2001 in the form.”
In view of the above, when it is not in dispute that the driver of the offending vehicle had LMV non-transport licence and was driving a vehicle – LMV transport with unladen weight coming within the prescribed limit, the insurer cannot be exonerated from its liability. As such, the contention of the learned counsel for the appellant in M.F.A.No.10192/2012 (Insurer) that because of the absence of a particular specific Driving Licence, the Insurer is not liable, is not acceptable.
17. It is also the argument of the learned counsel for the appellant in M.F.A.No.10192/2012 that in view of violation of the condition of the permit also, the insurer was not liable to indemnify the insured. According to the insurer, the accident in question has occurred at a place which was not less than a distance of six kilometers from the centre of Jagalur town. The said contention has been vehemently opposed by the claimant and as well by RW-2 – driver of the offending vehicle.
The copy of the FIR marked ag Ex.P1 goes to show that the place of accident was at a distance of six Kilometers from the Police Station. But the evidence led by RW-2 in the Court below is to the effect that the alleged place of accident was within three to four Kilometers from the centre of Jagalur town. Further, an evidence was also led before the Tribunal that the assessment of distance of five kilometers when taken from the Municipality of Jagalur town, the place of accident falls within five kilometers.
In that regard, the location of the Municipality as well as the location of the Police Station in Jagalur town was extensively discussed by the Tribunal in its impugned judgment. However, what can be noticed is that RW-2 who is one else than the driver of the offending vehicle in his evidence in clear terms has stated that the place of accident apart from falling within the territorial limits of Jagalur Town Municipality, the same is located within three to four kilometers from the said Municipality. As such, the place of accident is within the permissible limit under Ex.R2. The said specific evidence of RW-2 has not been denied in his cross-examination by the Insurance Company. Therefore, in the absence of any material produced by the Insurance Company to the effect that there is any violation of the condition of the permit, the undenied evidence of RW-2 regarding the distance of the place of accident from the Municipality of Jagalur town is to be considered. In such a situation it cannot be accepted that the place of accident was beyond five kilometers of the permissible limit under Ex.R2.
As such, both counts raised by the appellant/ Insurance Company in M.F.A. No.10192/2012 are not acceptable. Accordingly I proceed to pass the following:-
O R D E R [i] M.F.A.No.10192/2012 is dismissed as devoid of merit;
[ii] M.F.A.No.9726/2012 is allowed in part;
[iii] The judgment and award dated 02-08-2012 passed in M.V.C.No.29/2011 by the Principal Civil Judge (Sr.Dn.) & Additional Motor Accident Claims Tribunal-IV, Chitradurga, is hereby modified to the extent that the compensation awarded at `35,000/- is enhanced by an additional sum of `35,000/- (Rupees Thirty Five Thousand Only), thus, making the total amount for which the claimant is entitled at `70,000/- (Rupees Seventy Thousand Only).
The rest of the order of the Tribunal with respect to fixing the liability upon the Insurer and directing the Insurer– ICICI Lambord General Insurance Co.Ltd. to deposit the awarded amount, awarding the interest, its rate, terms regarding release of the amount awarded shall remain unaltered.
Draw the modified award accordingly.
The amount in deposit by the appellant/Insurance Company in M.F.A.No.10192/2012, if any, be transmitted to the Tribunal immediately.
Sd/- JUDGE BMV*