IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 25TH DAY OF MARCH, 2019 BEFORE:
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MISCELLANEOUS FIRST APPEAL NO.6398 OF 2012 [MV] C/W.
MISCELLANEOUS FIRST APPEAL NO.5789 OF 2012 [MV] IN MFA NO.6398/2012 BETWEEN FAYAZ KHAN, S/O. MOHINDDIN KHAN, AGED ABOUT 25 YEARS, OCCUPATION WORKER IN TEA HOTEL, R/O. CHIKKAKUNALA, DODDAKUNALA POST, KADABA HOBLI, GUBBI TALUK, TUMKUR DISTRICT. ... APPELLANT [BY SRI.H. ASHOK KUMAR, ADVOCATE] AND 1. TAJ AHAMED KHAN, S/O. RAHEEM KHAN, AGED ABOUT 59 YEARS, R/O. NO.185, CHIKKAKUNALA, DODDAKUNALA POST, KADABA HOBLI, GUBBI TALUK, TUMKUR DISTRICT.
2. THE MANAGER, NEW INDIA ASSURANCE CO. LTD., B.H. ROAD, TUMKUR-572 102. ... RESPONDENTS [BY SRI. R.JAIPRAKASH, ADVOCATE FOR R2. NOTICE TO R1 DISPENSED WITH VIDE COURT ORDER DATED 30.10.2014] THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 09.01.2012 PASSED IN MVC NO.1143/2008 ON THE FILE OF SENIOR CIVIL JUDGE & ADDITIONAL MACT-XVII, GUBBI PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
* * * IN MFA NO.5789/2012 BETWEEN NEW INDIA ASSURANCE CO. LTD., REP. BY MANAGER, MAHATMA GANDHI ROAD, BANGALORE-1 REPRESENTING:
NEW INDIA ASSURANCE CO. LTD., B-II ROAD, TUMKUR. ... APPELLANT [BY SRI. R. JAIPRAKASH, ADVOCATE] AND 1. TAJ AHAMED KHAN, S/O. RAHEEM KHAN, 61 YEARS, NO.185, CHIKKA KUNALA, DODDAKUNALA POST, KUDABA HOBLI, GUBBI TALUK, TUMKUR DIST.
2. FAYAZ KHAN, S/O. MOHIDDIN KHAN, 25 YEARS, RESIDENT OF CHIKKA KUNALA, DODDAKUNALA POST, KADABA HOBLI, GUBBI TALUK, TUMKUR DIST. ... RESPONDENTS [BY SRI.H. ASHOK KUMAR, ADVOCATE FOR R2. R1- SERVED] THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 09.01.2012 PASSED IN MVC NO.1143/2008 ON THE FILE OF SENIOR CIVIL JUDGE & ADDITIONAL MACT-17, GUBBI, AWARDING A COMPENSATION OF RS.1,29,664/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION.
* * * THESE MFAs COMING ON FOR FINAL HEARING, THIS DAY THE COURT DELIVERED THE FOLLOWING:
JUDGMENT MFA No.6398/2012 is filed by the injured/claimant, seeking enhancement of compensation, whereas MFA No.5789/2012 is filed by the Insurance Company, questioning the liability. Both the appeals are arising out of MVC No.1143/2008 on the file of the Court of Senior Civil Judge and Additional MACT-XVII at Gubbi, wherein the Tribunal by its Judgment and Award dated 09.01.2012 was pleased to Award a total compensation of Rs.1,29,664/- with interest at the rate of 6% p.a. to the claimant towards compensation for the injuries sustained by him in a road traffic accident.
2. I have heard the learned counsel appearing for the claimant and the learned counsel appearing for the Insurance Company.
3. The facts of the case in brief are that;
The claimant was a native of Chikkakunala and he was working in a Tea Hotel at Bengaluru. On 08.02.2008 he had come to his native place and thereafter, on 09.02.2008 at about 8.30 a.m. he was waiting for a vehicle at Chikkakunala so as to go to Bengaluru. When he was thus waiting along with another by name Khalander for the bus to go to Gubbi, a tempo trax bearing reg. No.KA-06/B-7722 came and both of them traveled in the said vehicle. When the said vehicle reached between Gopalapura and Koppa Gates, due to the rash and negligent driving by the driver of the said tempo trax, the vehicle dashed against a road side tree. As a result of the same, the vehicle got damaged and the appellant sustained grievous injuries and he was shifted to Gubbi Hospital, wherein he was given first-aid treatment and thereafter, he was shifted to Siddartha Hospital, Agalakote, B.H. Road, Tumakuru for further treatment, wherein he was treated till 15.02.2008. Again he was shifted to Lady Curzon Hospital, Bengaluru, wherein treatment was given till 26.02.2008 and thereafter, he was shifted to Siddartha Hospital for surgery. Surgery was done.
The appellant filed a claim petition seeking a total compensation of Rs.10,00,000/- for the injuries sustained by him in the aforementioned road traffic accident. According to the appellant, he was working in a Tea Hotel in Bengaluru and earning a sum of Rs.5,000/- p.m. He sustained closed fracture of shaft right femur and suffered disability to an extent of 22% to the whole body. On account of the accidental injuries, he has lost the income in view of his inability to do the work as before.
The Tribunal awarded a total compensation of Rs.1,29,664/- with interest at 6% p.a. from the date of petition till realization.
4. The learned counsel for the appellant would contend that though the appellant was having an income of Rs.5,000/- p.m., the Tribunal has taken the income at Rs.3,000/- p.m. It is further submitted that though the doctor has assessed the permanent disability to the whole body at 22%, the Tribunal has taken the permanent disability at 10%. He submits that the compensation awarded under different heads are on the lower side and accordingly seeks to enhance the compensation.
5. The learned counsel for the appellant further submits that the Tribunal was not proper in holding that the driver of the offending vehicle was not holding a proper driving licence as on the date of the accident and therefore, directing the Insurance Company to recover the same from respondent No.1 after paying to the appellant herein is also not proper. He would submit that the driver of the offending vehicle was holding a valid driving licence and therefore, seeks to allow the appeal.
Per contra, the learned counsel appearing for the Insurance Company submits that the total compensation awarded cannot be said to be on a lower side. It is his contention that the driver of the offending vehicle was holding a learner’s licence and he was not authorized to drive a maxi cab since the said learner’s licence was issued in respect of a non-transport light motor vehicle. The offending vehicle being a passenger carrying vehicle, there is a violation of the policy conditions and therefore, he submits that the insurer cannot be held liable to pay the compensation and accordingly seeks to dismiss the appeal filed by the claimant and to allow the appeal filed by the Insurance Company.
6. It is the case of the appellant/claimant that on 09.02.2008 at about 8.30 a.m. he was waiting for the bus to go to Gubbi at Chikkakunala and at that time, a tempo trax bearing reg. No.KA-06/D-7722 was on its way and he got into the said vehicle. When the vehicle was between Gopalapura and Koppa Gates, it met with an accident due to the rash and negligent driving by its driver. As a result of which, he sustained grievous injuries and shifted to the hospital. The fact that he sustained injuries in the aforesaid road traffic accident and involvement of the aforementioned tempo trax are not in dispute. It is also not in dispute that the said tempo trax was insured.
7. According to the learned counsel for the Insurance Company, the driver of the tempo trax was holding a driving licence to drive LMV [NT]. The said licence was a learner’s licence. He was not holding a driving licence to drive a passenger carrying vehicle viz., the type of vehicle which is involved in the accident. Therefore, it is his contention that the Insurance Company cannot be held liable to indemnify the owner of the vehicle.
8. Ex.R3 is the driving licence. A perusal of the same goes to show that it was a learner’s licence to drive LMV [NT]. The licence was valid from 31.01.2008 to 30.07.2008. The accident has occurred on 09.02.2008 when the licence was in force. Admittedly, there is a valid Insurance Policy, which is marked as per Ex.R2, wherein it is mentioned with regard to the persons or class of persons entitled to drive. i.e., any person including the insured provided that the person driving holds an effective and valid driving licence to drive the category of vehicle insured hereunder, at the time of accident and is not disqualified from holding or obtaining such a licence. Provided also that a person holding an effective and valid learner’s licence to drive the category of vehicle insured thereunder may also drive the vehicle when not used for transport of passengers at the time of accident and that the person satisfies the requirements of Rule 3 of the Central Motor Vehicles Rule, 1989 [hereinafter referred to as “1989 Rules” for brevity]. Even the Tribunal has observed that there is no charge-sheet filed for an offence punishable under section 181 of I.M.V. Act. In that view of the matter, it cannot be said that there is a violation of Rule 3 of the 1989, Rules.
9. The Hon’ble Apex Court in the case of National Insurance Co. Ltd. Vs. Swaran Singh and others, has held that a learner’s licence is also a licence within the meaning of the provisions of the Motor Vehicles Act of 1988 [hereinafter referred to as “1988 Act”]. It cannot, therefore, be said that a vehicle when being driven by a learner, subject to the conditions mentioned in the licence, he would not be a person who is not duly licensed resulting in conferring a right on the insurer to avoid the claim of the third party. It cannot be said that a person holding a learner’s licence is not entitled to drive the vehicle. Even if there exists a condition in the contract of insurance that the vehicle cannot be driven by a person holding a learner’s licence, the same would run counter to the provisions of Section 149(2) of the said Act.
10. The contention of the learned counsel for the Insurance Company is that the vehicle involved in the accident is a passenger carrying vehicle and therefore, there should have been a separate endorsement in the licence to drive such type of vehicle since the driver of the offending vehicle was possessing a driving licence to drive only LMV [NT]. The said contention cannot be accepted in view of the law laid-down by the Hon’ble Apex Court in the case of Mukund Dewangan Vs. Oriental Insurance Co. Ltd. and others, reported in 2017 ACJ 2011, wherein the Hon’ble Apex Court has held that no separate endorsement is required to drive such type of vehicle which does not exceed 7500 kg. In view of the aforesaid decision, the findings recorded by the Tribunal directing the Insurance Company to pay at first instance and then to recover the same from the insured has to be set aside. It is held that the Insurance Company is liable to make good the compensation as both respondent Nos.1 and 2 are jointly and severally liable to pay the compensation and therefore respondent No.2 shall have to pay the compensation to the claimant, who is a the third party.
11. According to the claimant, he was working in a Tea Hotel in Bengaluru and earning a sum of Rs.5,000/- p.m.
The Tribunal has taken the income at Rs.3,000/- p.m. The accident has occurred in the year 2008. In the absence of any specific evidence with regard to the income of the claimant and in the facts and circumstance of the case, it is just and proper to take the notional income of the claimant at Rs.4,500/- p.m.
12. The appellant has suffered closed fracture of shaft right femur as per Ex.P7-wound certificate. P.W.2 is also a surgeon. He has deposed that on examination of the claimant, he noticed a closed fracture of shaft right femur. Initially, he was treated with IV fluid, Thomas splint immobilization and evaluated. After two days of hospitalization patient developed irrelevant talking with Jaundice for which he was referred to higher centre, Bengaluru for further revaluation. Again patient was re- admitted and subsequently underwent surgery i.e., ORIF with IM Interlock nailing and spinal anesthesia. Subsequent examination showed that there was;
(a) Pain in right hip joint with a limping, (b) Difficulty to squat and sit cross leg on floor, (c) Difficulty to stand on affected leg for long time, (d) Cannot walk for longer distance and run.
After clinico radiological valuation it was assessed that the claimant was having 30% disability for hip joint, 15% for right knee and 5% for shortening. The whole body disability was assessed at 22%. It is further deposed that the claimant may require implant removal surgery, which may cost Rs.20,000/.
13. The Tribunal has taken the permanent disability to the whole body at 10%. Considering the aforesaid evidence on record and also considering the avocation of the appellant, though it cannot be said that there is a disability to an extent of 22% to the whole body, I deem it proper to take the disability to the whole body at 17% as against 10% taken by the Tribunal.
14. Considering the income at Rs.4,500/- p.m., the disability suffered at 17% to the whole body and adopting the multiplier of ‘18’ which is applicable to the age of the claimant, who was aged about 21 years, the compensation for which the claimant is entitled towards loss of future earning due to the disability would be Rs.1,65,240/- [Rs.4,500 x 17% x 12 x 18].
15. The compensation awarded by the Tribunal towards pain and agony and towards medical expenses is just and proper. The total compensation of Rs.6,000/- awarded towards attendant charges and transportation charges including food and nourishment is enhanced to Rs.15,000/-. A sum of Rs.25,000/- is awarded towards loss of amenities/loss of future enjoyment as against Rs.10,000/- awarded by the Tribunal. A sum of Rs.9,000/- is awarded towards loss of income during the laid-up period. In all, the claimant is entitled for a total compensation of Rs.2,66,704/- which is rounded off to Rs.2,67,000/- as against Rs.1,29,664/- awarded by the Tribunal. Hence, I pass the following:
ORDER MFA No.6398/2012 is allowed in part. MFA No.5789/2012 is dismissed.
The claimant/appellant in MFA No.6398/2012 is entitled for a total compensation of Rs.2,67,000/- with interest at 6% p.a. from the date of the petition till realization as against Rs.1,29,664/- awarded by the Tribunal.
The Insurance Company shall pay the compensation and the same shall be deposited within a period of four weeks from the date of receipt of a copy of this Judgment.
The amount deposited before this Court shall be transmitted to the jurisdictional Tribunal.
Sd/- JUDGE.
Ksm*