IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE S.G.PANDIT M.F.A.No.3261/2013 [MV] BETWEEN:
ILYAZ N S/O NISAR AHMED AGED ABOUT 26 YEARS R/AT NO.21, 2ND MAIN 3RD CROSS, B.K. NAGARA YESHWANTHAPURA BANGALORE-22. ...APPELLANT (BY SRI.K.V.NAIK, ADV. FOR SRI. SHRIPAD V SHASTRI, ADV.) AND:
1. UNITED INDIA INSURANCE CO. LTD., R.O. KRISHI BHAVAN 6TH FLOOR NRUPATHUNGA ROAD NEAR HUDSON CIRCLE BANGALORE-07 BY ITS MANAGER.
2. SMT. CHOWDAMMA W/O LATE RAMAIAH MAJOR R/AT EDIGARA DASARAHALLI YELIYUR POST KASABA HOBLI SIRA TALUK TUMKUR DIST.-572137. …RESPONDENTS (BY SRI. A M VENKATESH, ADV. FOR R1 SRI. G.S. VENKATA SUBBA RAO, ADV. FOR R2) THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 01.01.2013 PASSED IN MVC NO.1813/2011 ON THE FILE OF THE XVIII ADDITIONAL JUDGE, MEMBER, MACT-4, COURT OF SMALL CAUSES, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS M.F.A COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T The appellant/claimant is before this Court not being satisfied with the quantum of compensation awarded under the judgment and award dated 01.01.2013 passed in MVC No.1813/2011 on the file of XVIII Additional Judge, Member, MACT-4, Court of Small Causes, Bangalore.
2. The claimant filed claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation for the injuries suffered in a Road Traffic Accident. It is stated that on 19.02.2011 when the claimant was proceeding in his Motor Cycle bearing Reg.No.MER-7646 from Tumkur towards Sira, a Tractor Trailor bearing Reg.No.KA-06/TA-6517-6518 came in a rash, negligent manner and dashed to the claimant’s Motor Cycle, as a result of which he sustained grievous injuries. He took treatment as inpatient for six days. The claimant was aged 24 years and was a fish merchant. He was earning Rs.9,000/- per month.
3. On issuance of summons, the 2nd respondent remained ex-parte and respondent No.1 - Insurance Company appeared before the Tribunal and filed its objection denying the entire petition averments and contended that the driver of the offending vehicle did not possess valid and effective driving license at the time of accident, but admitted the issuance of insurance policy in respect of the offending vehicle. The claimant examined himself as PW.1, examined the Doctor as PW.2 and one Manjunath as PW.3 and got marked the documents Exs.P.1 to P.17. The respondent examined RW.1 and marked Ex.R.1 – the DL extract. The Tribunal on assessing the material on record awarded total compensation of Rs.1,98,800/- with interest at 6% p.a. from the date of petition till the date of realization on the following heads :-
a. Pain sufferings 25,000/-
b. Loss of amenities and Happiness 10,000/-
c. Medical and incidental charges 90,000/-
d. Loss of earnings during the period of treatment 9,000/-
e. Loss of future earnings due to disability 64,800/-
Total Rs. 1,98,800/-
While awarding the above compensation the Tribunal assessed the monthly income of the claimant at Rs.3,000/- and whole body disability at 10%. Not being satisfied with the quantum of compensation awarded by the Tribunal and aggrieved by saddling of liability on the 2nd respondent – owner of the vehicle, the appellant is before this Court in this appeal.
4. Heard the learned counsel for the appellant and learned counsel for the respondents. Perused the entire material on record.
5. The learned counsel for the appellant would submit that the Tribunal committed an error in saddling the liability on the 2nd respondent – owner of the offending vehicle on the ground that the driver of the offending vehicle i.e., the Tractor and Trailor had no valid and effective driving license to drive the Tractor and Trailor, as on the date of accident. In support of the said contention he relied upon the decision of the Apex Court in NAGASHETTY Vs. UNITED INDIA INSURANCE COMPANY LIMITED AND OTHERS. reported in AIR 2001 SC 3356. The learned counsel for the appellant would submit that the income assessed by the Tribunal at Rs.3,000/- per month is on the lower side. He submits that the claimant was a fish merchant and was earning Rs.9,000/- per month. As such the income assessed at Rs.3,000/- per month is on the lower side and prays for enhancement of the same. Further the learned counsel for the appellant would submit that the whole body disability assessed by the Tribunal at 10% is on the lower side and the same is against the evidence of the Doctor - PW.2. PW.2 – the Doctor stated that the claimant suffered disability to particular limb at 32.2% and disability of 17% to whole body. Therefore he submits that the assessment of disability by the Tribunal at 10% is on the lower side and prays for enhancement of the same. Learned counsel submits that the claimant was inpatient for six days and he has suffered compression fracture of L2 vertebra, fracture of spinous process of L1, L2 and left lamna of L2 and bilateral transverse process of L2 vertebra, tenderness present over the lower back (lumbar) region, compression collapse fracture of lumbar vertebra L2 and injuries to other parts. Looking to the injuries suffered, the compensation awarded is on the lower side and, the claimant prays for enhancement of compensation.
6. Per contra, the learned counsel for the 1st respondent – Insurance Company would submit that as on the date of accident the driver of the Tractor Trailor had licence to drive the tractor and the issue raised by the appellant in this regard is fully covered by the decision of the Hon’ble Apex Court in NAGASHETTY cited supra. It is his further submission that the Tribunal assessed the income of the claimant at Rs.3,000/- which is just and proper. He claims that he was a fish merchant but has not placed any material on record to indicate his exact income or to substantiate his avocation as fish merchant. Hence prays for dismissal of the appeal. Further he submits that the Tribunal has assessed the whole body disability at 10% taking into consideration the evidence of PW.2 and medical records, which needs no interference.
7. On hearing the learned counsels for the parties and on perusal of the material on record, the points that arise for consideration is as to a. Whether the Tribunal is justified in saddling the liability on respondent No.2 – owner of the offending vehicle ?
b. Whether the claimant would be entitled for enhancement of compensation in the facts and circumstances of the case ?”
Answer to point No.1 is in the negative and point No.2 is in the affirmative for the following reasons :
The occurrence of the accident on 19.02.2011 involving Motor Cycle bearing Reg.No.MER-7646-and the Tractor Trailor bearing No.KA-06-TA-6517-6518 and the accidental injuries suffered by the claimant are not in dispute in this appeal. The claimant’s appeal is for enhancement of compensation and for shifting the liability from 2nd respondent – owner of the offending vehicle to 1st respondent – Insurer. The Tribunal saddled the liability on the 2nd respondent – owner of the offending vehicle on the ground that the driver of the Tractor Trailor had no valid and effective driving license as on the date of accident. In view of the law laid down by the Hon'ble Supreme Court in the decision cited supra, a person who possesses the licence to drive the Tractor could also drive the Tractor Trailor. Ex.R1, DL extract would establish that the driver of the Tractor Trailor had licence to drive Tractor, which would be sufficient to drive Tractor Trailor. Therefore, the liability saddled on respondent No.2 owner is shifted to 1st respondent – Insurer. Accordingly, the insurer to deposit the compensation amount that would be decided, within a period of four weeks. The claimant states that he was earning Rs.9,000/- per month, but he has not placed on record any material to indicate that he was a fish merchant and to indicate his exact income. In the absence of any material to indicate the exact income, notional income will have to be assessed. Even a coolie would earn more than Rs.200/- per day which would come to Rs.6,000/- per month. The accident is of the 2011. In the instant case in the absence of any documents to indicate the exact income, it would be appropriate to assess the notional income at Rs.6,500/- per month. The claimant was aged 24 years as on the date of accident and Tribunal adopted the multiplier of ‘18’ which is proper and correct. The learned counsel for the claimant states that the whole body disability assessed at 10% is on the lower side. The claimant suffered injuries as stated above. The claimant has placed on record Ex.P6 – the Wound Certificate and Ex.P.7 – the Discharge Summary, which would indicate the injuries suffered by the claimant and treatment taken by him as inpatient for six days. PW.2 – the Doctor in his evidence has stated that the claimant suffers from disability of 33.2% to the Thoraco lumbar vertebra and 17% to the whole body. But the claimant has not produced the disability certificate to indicate disability assessed by the doctors. Normally the whole body disability would be assessed at 1/3rd of the disability to a particular part of the body. The Tribunal has rightly assessed the disability at 1/3rd of the disability suffered to a particular limb. Therefore, I am of the view, that the Tribunal rightly assessed whole body disability at 10% which needs no interference. Looking to the injuries suffered and the treatment taken the compensation awarded on the head loss of amenities is on the lower side. The claimant would be entitled for another sum of Rs.10,000/- on the head of loss of amenities andhappiness in addition to Rs.10,000/- awarded by the Tribunal. Thus the claimant would be entitled for the following enhanced compensation:-
Total Rs.2,94,900/-
8. Accordingly, the appeal is allowed in part. The impugned judgment and award is modified and the claimant is entitled to enhanced compensation in a sum of Rs.2,94,900/- as against Rs.1,98,800/- awarded by the Tribunal with interest at 6% p.a. from the date of petition till the date of realization. Since the liability is shifted from 2nd respondent owner to 1st respondent – Insurer, 1st respondent-Insurer shall deposit the compensation amount within 6 weeks from the date of receipt of a copy of this judgment.
Sd/- JUDGE NG* CT:bms