IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT M.F.A.NO.8168 OF 2013 (MV) c/w M.F.A.NO.8316 OF 2013 IN M.F.A.NO.8168 OF 2013 BETWEEN:
THE MANAGER HDFC ERGO GENERAL INSURNACE COMPANY LIMITED 1ST FLOOR, RM GEVEVA HOUSE NO.14, CUNNINGHAM ROAD BANGALORE-560002.
(BY SRI. O MAHESH, ADVOCATE) AND:
1. LOKESH, AGED 29 YEARS, S/O. GOPALAIAH, R/AT : NARASANDRA AT POST, KUDUR HOBLI, MAGADI TALUK, RAMANAGARA DISTRICT-571511.
2. GOVINDARAJU, MAJOR, S/O. SRINIVAS, R/O. NARASANDRA POST, KUDUR HOBLI, MAGADI TQ, ...APPELLANT RAMANAGARA DIST-571511.
... RESPONDENTS (BY SRI M.P.SRIKANTH, ADVOCATE FOR R1 R3 IS MINOR REPRESENTED BY R2 NOTICE TO R2 IS D/W V/O DATED 12.08.2015) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 17.7.2013 PASSED IN MVC NO.2352/2012 ON THE FILE OF THE 22ND ACMM, 24TH ADDITIONAL SMALL CAUSES JUDGE, MACT, BANGALORE, AWARDING A COMPENSATION OF RS.1,45,600/- WITH INTEREST @ 6% P.A FROM THE DATE OF PETITION TILL DEPOSIT OF ENTIRE AMOUNT.
IN M.F.A.NO.8316 OF 2013 BETWEEN:
SRI. LOKESH S/O GOPALAIAH, AGED ABOUT 29 YEARS, R/AT NARASANDRA AT POST, KUDUR HOBLI, MAGADI TALUK, RAMANAGARA DISTRICT.
(BY SRI. SHRIPAD V SHASTRI, ADVOCATE) ...APPELLANT AND:
1. SRI. GOVINDARAJU R/AT NARASANDRA AT POST, KUDUR HOBLI, MAGADI TALUK, RAMANGARA DISTRICT-571511.
2. THE MANAGER, HDFC ERGO GEN.INSURANCE COMPANY LTD., 1ST FLOOR, RM GENEVA HOUSE, NO.14, CUNNINGHAM ROAD, BENGALURU-2.
RESPONDENTS (BY SRI. H S LINGARAJU, ADVOCATE FOR R2) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 17.7.2013 PASSED IN MVC NO.2352/2012 ON THE FILE OF THE XXIV ADDITIONAL SMALL CAUSE JUDGE, & XXII ACMM, MACT, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE MFAs COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Both the insurer and claimant are in appeal under Section 173(1) of the Motor Vehicles Act, assailing the judgment and award dated 17/07/2013 in MVC.No.2352/2012 on the file of the XXII A.C.M.M & XXIV A.S.C.J, Bengaluru. The claimant filed MFA.No.8316/2013, praying for enhancement of compensation, whereas the insurer filed MFA.No.8168/2013, challenging saddling of liability on it.
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 01-3-2012, when the claimant was proceeding as a pedestrian on NH-48, Nelamangala- Kunigal road near Arepalya, Tempo bearing Reg.No.KA-06- B-8177 came in a rash and negligent manner and dashed to the claimant. As a result, the claimant suffered grievous injuries. It is stated that he was aged about 28 years as on the date of accident and was earning Rs.5,000/- per month as an agricultural coolie.
3. On issuance of notice, respondents appeared before the Tribunal and filed their written statement. Respondent No.1-owner in his statement stated that the offending vehicle was insured with respondent No.2-insurer and denied the other claim petition averments. Respondent No.2-insurer in its objection, apart from denying the entire claim petition averments also took up the contention that the claimant was not a pedestrian but he was an unauthorized passenger in the vehicle/tempo, which was goods carrying vehicle. Further stated that respondent No.1 colluded with the claimant. It is also contended that the driver of the offending tempo was not possessing a valid and effective driving license as on the date of accident i.e., on 01-3-2012.
4. Claimant examined himself as PW-1 and Doctor as PW-2, apart from marking documents Exs.P-1 to P-15.
Respondents examined RW-1 & 2, apart from marking documents Exs.R-1 to R-4.
5. The Tribunal on appreciating the material on record, awarded total compensation of Rs.1,45,600/- with interest at the rate of 6% per annum from the date of petition till deposit, on the following heads:
Amount in (Rs.) 1. Pain and suffering 25,000 2. Medical expenses 8,000 3. Incidental and attending charges 4. Loss of earnings during laid up period 5. Loss of future earning capacity 6. Loss of amenities and unhappiness 6,000 15,000 81,600 10,000 Total 1,45,600 The claimant is in appeal in MFA.No.8316/2013, praying for enhancement of compensation, whereas the insurer is in appeal in MFA.No.8168/2013, challenging the saddling of liability on it.
6. Heard the learned counsel for the claimant and learned counsel for the Insurer. Perused the material on record including the lower court records.
7. Learned counsel for the insurer would submit that the injured claimant was a passenger in a goods carrying vehicle, he was not a pedestrian as claimed. It is further submitted that to claim compensation, the claimant has stated that he was proceeding as pedestrian and offending vehicle dashed against him. Learned counsel further invites attention of this Court to Ex.R4-NIMHANS Hospital records/Outpatient record, which indicates that the claimant went to NIMHANS Hospital with history of RTA 4 wheeler tempo, passenger which upsided down of tempo hitting the road divider, which caused injury to the claimant. He further submits that the insurer has produced Ex.R1-insurance policy, which would indicate that the vehicle in question was goods carrying vehicle and the claimant being unauthorized passenger is not covered with the risk. Further, he contends that as on the date of accident i.e., on 01-3-2012, the driver of the offending vehicle was not holding a valid and effective driving license to drive the transport vehicle. The license of the offending driver in respect of transport vehicle had expired on 10-8-2011, which was renewed subsequent to the date of accident. As such, he had no valid and effective driving license as on the date of accident. Thus, the Tribunal could not have saddled the liability on the insurer. Thus, he prays for allowing the appeal filed by the insurer.
8. Per contra, learned counsel for the claimant would submit that the Tribunal rightly saddled the liability on the insurer. He further submits that the claimant was proceeding as pedestrian on NH-48, Nelamangala-Kunigal road near Arepalya, Tempo bearing Reg.No.KA-06-B-8177 came in a rash and negligent manner and dashed to him. Due to which, he suffered grievous injuries and immediately he was taken to Mathrushree Hospital and thereafter he was referred to Victoria Hospital. As per records of the Victoria Hospital, which is placed on record as Ex.P-15, the history of the patient shows that the claimant was standing on the road when 4 wheeler came and hit and dragged him, due to which he sustained multiple injuries. Subsequently, from Victoria Hospital the claimant was referred to NIMHANS Hospital, wherein it is recorded that the claimant came with history of RTA 4 wheeler Tempo passenger, which upsided down of tempo hitting the road divider. Learned counsel further invites attention of this Court to Ex.P2-Complaint lodged by one Govindaiah, which states that the claimant was injured as the tempo hit him from back side. Thus, he submits that the claimant suffered injuries as a result of tempo coming and hitting him and he was not a passenger in the goods carrying vehicle. Further he submits that the driver of the offending vehicle had driving license to drive LMV-Non Transport vehicle as on the date of accident as per Ex.R2 and it was valid up to 18-10-2015. The driver of the offending vehicle had endorsement to drive Transport vehicle, which had expired on 10-8-2011 but it was renewed subsequently. Further stated that as on the date of accident, the driver of the offending vehicle had LMV license to drive Non-Transport vehicle and as such the same is covered by 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.
Thus, he prays to reject the appeal filed by the insurer. With regard to the enhancement, learned counsel for the claimant submits that the claimant was inpatient for five days and he had suffered severe head injury. PW-2- Doctor opined that the claimant suffered 18% disability to the whole body, whereas without there being any reason, the Tribunal assessed the whole body disability at 8%, which needs to be enhanced and consequently prayed for enhancing the compensation.
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.
a) Whether the Tribunal is justified in saddling the liability on the insurer?
b) Whether the claimant would be entitled for enhanced compensation?
Answer to the above points are in the affirmative and in the negative respectively for the following reasons.
10. The accident occurred on 01-3-2012 involving Tempo bearing Reg.No.KA-06-B-8177 and the accidental injuries suffered by the claimant are not in dispute in this appeal. But the manner of accident and as to whether the claimant was pedestrian or passenger is in question in these appeals. The claimant suffered accidental injuries i.e., loss of right auricle, slab, left shoulder and head injury, Ex.P6- wound certificate would indicate the same. The accident had taken place on 01-3-2012 and on the same day, the complaint was lodged by one Govindaiah. The complaint would indicate that while the claimant was proceeding as pedestrian, Tempo bearing Reg.No.KA-06-B-8177 came from behind and dashed to the claimant, the complaint- Ex.P-2 reads as follows:
“ªÉÄð£ÀAvÉ «¼Á¸ÀzÀ°è ªÁ¸ÀªÁVgÀĪÀ £Á£ÀÄ §gɹ PÉÆqÀĪÀ PÀA¥ÉèAmï K£ÉAzÀgÉ ¸Áé«Ä. F ¢£À CAzÀgÉ ¢£ÁAPÀ 01-03-2012 gÀAzÀÄ ¨É¼ÀUÉÎ 11.30 UÀAmÉAiÀÄ°è £Á£ÀÄ ªÀÄvÀÄÛ ¯ÉÆÃPÉñÀ JA§ÄªÀgÀÄ CgÉÃ¥Á¼ÀåzÀ ºÀwÛgÀ PÀÆ° PÉ®¸ÀPÁÌV NH–48 gÀ¸ÉÛ ¥ÀPÀÌ £ÀqÉzÀÄ ºÉÆÃUÀÄwÛzÉݪÀÅ. ¯ÉÆÃPÉñï JA§ÄªÀgÀÄ ªÀÄÄAzÉ CAzÀgÉ 40 jAzÀ 50 Cr CAvÀgÀzÀ°è £ÁªÀÅ £ÀqÉzÀÄPÉÆAqÀÄ ºÉÆÃUÀÄwÛgÀĪÁUÉÎ »A¢¤AzÀ ªÀiÁåQì 100 mÉA¥ÉÆà £ÀA.
KA-06-B-8177 CzÀgÀ ZÁ®PÀ »AzÀÄUÀqɬÄAzÀ CAzÀgÉ PÀÄtÂUÀ¯ï PÀqɬÄAzÀ ¨ÉAUÀ¼ÀÆgÀÄ PÀqÉUÉ CwªÉÃUÀ ªÀÄvÀÄÛ CeÁUÀgÀÆPÀvɬÄAzÀ ZÁ®£É ªÀiÁrPÀPÉÆAqÀÄ §AzÀÄ gÀ¸ÉÛ ¥ÀPÀÌ £ÀqÉzÀÄ ºÉÆÃUÀÄwÛzÀÝ ¯ÉÆÃPÉñÀ¤UÉ rQÌ ºÉÆqɹ gÀ¸ÉÛAiÀÄ ªÉÄÃ¯É GgÀĽ©¢ÝzÀÝjAzÀ DvÀ£À vÀ¯É, ªÀÄÄRPÉÌ gÀPÀÛUÁAiÀÄUÀ¼ÁzÀªÀÅ. £ÀAvÀgÀ 108 DA§Äå¯É£ïì£À°è £É®ªÀÄAUÀ® ªÀiÁvÀȲæà D¸ÀàvÉæUÉ ¸ÁªÀðd¤PÀgÀ ¸ÀºÁAiÀÄ¢AzÀ zÁR°¹zɪÀÅ. DzÀÝjAzÀ F C¥ÀWÁvÀPÉÌ PÁgÀt£ÁzÀ KA-06-B-8177gÀ ªÀiÁåQì 100 mÉA¥ÉÆà ZÁ®PÀ£À ªÉÄÃ¯É PÁ£ÀÆ£ÀÄ jÃw PÀæªÀÄ dgÀÄV¸À¨ÉÃPÀAvÀ PÉÆÃgÀÄvÉÛãÉ.”
11. It is stated that the claimant was immediately taken to Mathrushree Hospital, Nelamangala and further he was referred to Victoria Hospital. Ex.P9-document of Mathrushree Hospital indicates that the claimant had come with history of RTA on 01-3-2012. Ex.P-15 is medical records of Victoria Hospital. Case sheet of Victoria Hospital records, history of present illness as follows:
“Patient was standing on the road when a 4 wheeler came and hit and dragged him and he sustained multiple injuries to head and upper limb”
A reading of the above case sheet of the Victoria Hospital would disclose that the claimant was standing on the road when 4 wheeler came and hit and dragged him and he sustained multiple injuries to head and upper limb. Then the claimant was referred to NIMHANS Hospital on 04-3-2012. The case sheet dated 04-3-2012 of the NIMHANS Hospital notes as follows:
“ANH/o RTA, 4 wheeler Tempo passenger, upsided down of Tempo hitting road divider.”
NIMHANS Hospital has recorded the history of the patient as RTA, when RTA 4 wheeler tempo passenger, upsided down of tempo hitting road divider. In the evidence of PW-1-claimant in the cross examination has stated that he has given the history of injury of NIMHANS Hospital. Further he also stated that in the cross examination, the accident occurred when he was walking on the road. But when the Ex.P-1, P-15 and the evidence of PW-1 read together, it is clear that the accident had taken place while the claimant was proceeding as pedestrian and the tempo had dashed him. The contention of the insurer that to claim insurance amount, the claimant has built up a story that he was pedestrian cannot be accepted. The next contention urged by the insurer is that the driver of the offending vehicle had no valid and effective driving license as on the date of accident i.e., on 01-3-2012. It is further submitted that the license endorsement had expired on 10-8-2011 and the driver had no driving license to drive transport vehicle. From Ex.R2, it is seen that the driver of the offending vehicle had driving license to drive transport vehicle and it was valid till 18-10-2015. The accident had taken place on 01-3-2012 and as on the date of accident, driver of the offending vehicle had license to drive LMV-NT. A person who possesses license to drive LMV-NT could also drive LMV-Transport vehicle of the same category in view of the decision of the Hon’ble Apex Court in the case of MUKUND DEWANGAN (supra). Thus, the said contention is also liable to be rejected.
12. Learned counsel for the claimant submits that the compensation awarded by the Tribunal is on the lower side when compared to the injuries suffered and treatment taken by the claimant. The claimant suffered the injuries as stated above and as per Ex.P6-wound certificate, the claimant was inpatient for five days. The Doctor-PW-2 in his evidence has stated that the claimant suffered 18.5% disability to a particular limb, but the Doctor has not stated as to what is the whole body disability due to the accident. In the absence of the evidence with regard to the whole body disability, the Tribunal rightly assessed the whole body disability at 8% taking into consideration the disability of 18.5% to a particular limb. The Tribunal assessed the income of the claimant at Rs.5,000/- per month. The claimant had also claimed Rs.5,000/- as his income. The compensation awarded on the other heads are just compensation which needs no interference. Thus, both these appeals filed by the claimant and insurer are rejected.
Sd/- JUDGE SMJ