IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF APRIL, 2019 BEFORE THE HON’BLE Dr. JUSTICE H.B. PRABHAKARA SASTRY M.F.A.No.7763 OF 2012 (MV) c/w.
M.F.A.No.2409 OF 2013 (MV) & M.F.A.No.2410 OF 2013 (MV) M.F.A.No.7763 OF 2012 (MV) BETWEEN:
Ravigowda, S/o. Ramanagowdar, Age: 41 years, Konanatale Village, Honnali Taluk, Davanagere District – 577001.
…Appellant (By Sri. Mahesh R. Uppin, Advocate) AND:
1. K. R. Ningachari, S/o Ramachandrappa, Age: 50 years, Owner of the Autorikshaw, Bearing Reg. No.KA-17-4042, R/o. Rajanahalli Village, Harihar Taluk, Davanagere District – 577601.
2. The Branch Manager, The New India Assurance Company Ltd., 1st Floor, Wali Complex, Shimoga Road, Harihar, Davanagere District – 577601.
3. Mehaboob Basha, G. Imam Sab, Age: 35 years, Driver of Autorikshaw Bearing Reg. No.KA-17-4042, R/o. Sunagar Road, Harihar, Davanagere District – 577601.
(By Sri. M.P. Srikanth, Advocate for R-2; R1 served; R3 - notice dispensed with vide order dated 27.06.2014) …Respondents *** This MFA is filed under Section 173(1) of Motor Vehicles Act against the Judgment and award dated 14-03-2012 passed in MVC No.44/2007 on the file of the Senior Civil Judge, Additional Motor Accident Claims Tribunal, Harihara, partly allowing the claim petition for compensation and seeking enhancement of compensation.
M.F.A.No.2409 OF 2013 (MV) BETWEEN:
Lokesh B.N.
S/o Ningappa, Age: 44 years, Occupation : Nil R/o. Konanatale Village, Honnali Taluk, Davanagere District – 577217.
… Appellant (By Sri. Mahesh R. Uppin, Advocate) AND:
1. K.R. Ningachari, S/o Ramachandrappa, Age : 51 years, Owner of the Autorikshaw, Bearing Reg. No.KA-17-4042, R/o. Rajanahalli Village, Harihar Taluk, Davanagere District -577601.
2. The Branch Manager, The New India Assurance Company Ltd., 1st Floor, Wali Complex, Shimoga Road, Harihar Taluk, Davanagere District - 577601.
3. Mehaboob Basha G. Imam Sab, Age: 36 years, Driver of Autorikshaw bearing Reg. No.KA-17-4042, R/o. Sunagar Road, Harihar Taluk, Davanagere District – 577601.
…Respondents (By Sri R.B. Deshpande, Advocate for R2, R1- served; R3 – notice dispensed with vide order dated 10.02.2015) **** This MFA is filed under Section 173(1) of Motor Vehicles Act against the Judgment and award dated 14-03-2012 passed in MVC No.42/2007 on the file of the Senior Civil Judge, Additional Motor Accident Claims Tribunal, Harihara, partly allowing the claim petition for compensation and seeking enhancement of compensation.
M.F.A.No.2410 OF 2013 (MV) BETWEEN:
G. Karibasappa, S/o Gadigeppa, Age: 35 years, Occupation: Nil, R/o. Konanatale Village, Honnali Taluk, Davanagere District-577217. … Appellant (By Sri. Mahesh R. Uppin, Advocate) AND:
1. K.R. Ningachari, S/o Ramachandrappa, Age : 51 years, Owner of the Autorikshaw, Bearing Reg. No.KA-17-4042, R/o. Rajanahalli Village, Harihar Taluk, Davanagere District -577601.
2. The Branch Manager, The New India Assurance Company Ltd., 1st Floor, Wali Complex, Shimoga Road, Harihar, Davanagere District - 577601.
3. Mehaboob Basha S/o. G. Imam Sab, Age: 36 years, Driver of Autorikshaw bearing Reg. No.KA-17-4042, R/o. Sunagar Road, Harihar, Davanagere District – 577601.
(By Sri R.B. Deshpande, Advocate for R2, R1- served; R3 - notice dispensed with vide order dated 18.02.2015) *** …Respondents This MFA is filed under Section 173(1) of Motor Vehicles Act against the Judgment and award dated 14-03-2012 passed in MVC No.43/2007 on the file of the Senior Civil Judge, Additional Motor Accident Claims Tribunal, Harihara, 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:
J U D G M E N T The claimants/appellants have preferred these three appeals challenging the common judgment and award dated 14-03-2012 passed by the learned Senior Civil Judge & Additional Motor Accident Claims Tribunal, Harihara (hereinafter referred to as ‘Tribunal’ for brevity) in M.V.C.No.44/2007, M.V.C.No.42/2007 and M.V.C.No.43/2007 respectively.
M.F.A.No.7763/2012 is filed by the claimant in M.V.C.No.44/2007, M.F.A.No.2409/2013 is filed by claimant in M.V.C.No.42/2007 and M.F.A.No.2410/2013 is filed by claimant in M.V.C.No.43/2007.
The appellants herein were the claimants in the Tribunal. Being dissatisfied with the quantum of compensation awarded to them and exonerating the respondent No.2 – Insurer from its liability to pay the compensation, have filed these three appeals.
2. The summary of the case of the claimants in the Tribunal is that, on 13-10-2006, the claimants in M.V.C.No.42/2007 and M.V.C.No.44/2007 were proceeding from Airani village to Rajenahalli village on a Hero Honda Motor Cycle bearing Registration No.KA- 17/TR-3061. The claimant in M.V.C.No.42/2007 was riding the motor cycle and the other claimant was a pillion rider. When their motor cycle was passing near Halasabalu village on NH-4 Road, at about 7:30 p.m., an Autorickshaw bearing Registration No.KA-17/4042 being driven by its driver in a rash and negligent manner, came from the opposite direction and dashed against the motor cycle on which these two riders/claimants were travelling. Due to the said road traffic accident, both of them sustained grievous injuries.
It is the case of the claimant in M.V.C.No.43/2007 that on the alleged date of accident. i.e. on 13-10-2006 and at the alleged time, he was also proceeding from Airani village to Rajenahalli in another motor cycle and had stopped the motor cycle near Halasablu village on NH-4 at about 7:30 p.m. in order to get the air pressure of the tyres of his motor cycle checked. At that time, the offending autorickshaw bearing Registration No.KA- 17/4042 being driven by its driver in a rash and negligent manner, after hitting the motor cycle in which the other two claimants in M.V.C.No.42/2007 and M.V.C.No.44/2007 were riding, also dashed to him who was standing on the side of the road parking his vehicle for getting the air pressure of the tyres of his motor cycle checked. As a result of the said accident, he also sustained injuries.
3. All these three claimants have further stated that they sustained grievous injuries including fracture injuries and were treated as in-patient in the Hospital and all the three claimants have claimed compensation from the owner, insurer and driver of the autorickshaw arraying them as respondents 1 to 3 in the claim petitions filed by them.
4. After recording the evidence and hearing both side, the Tribunal partly allowed all the three claim petitions and awarded compensation payable by owner and driver of the autorickshaw, but it exonerated the Insurance Company of its liability on the ground that the autorickshaw had no permit at all. It is against the said common judgment and award passed by the Tribunal, the claimants have preferred these three appeals.
5. Since these three appeals have arisen out of the common judgment passed by the Tribunal with respect to a common accident, all these three appeals have been treated as connected with each other and taken up together for their disposal.
6. Though these appeals were listed for admission, however, with the consent from both sides, they are taken up for final disposal.
7. Before the Tribunal, all the three claimants got themselves examined as PWs-1 to 3 and examined one Dr.Srinatha as PW-4 and got marked documents from Exs.P-1 to P-32. On behalf of the respondent-Insurance Company, one Sri. Rehamathulla, the Assistant Regional Transport Officer, Davanagere as RW-1, one Sri Mohammad Gows as RW-2 and Sri.Ashok, the Officer of Regional Transport Office, Davanagere as RW-3 were examined and documents at Exs.R-1 to R-6 were got marked.
8. After analysing the evidence and the materials placed before it, the Tribunal has awarded the compensation in M.V.C.No.42/2007 (M.F.A.No.2409 of 2013) as below:-
M.V.C.No.43/2007 (M.F.A.No.2410 of 2013) as below:-
The Tribunal has awarded the compensation in M.V.C.No.44/2007 (M.F.A.No.7763 of 2012) as below:-
9. The Tribunal awarded compensation of a sum of `1,54,829/- (in M.V.C.No.42/2007), `72,127/-, (in M.V.C.No.43/2007) and `1,34,348/- (in M.V.C. No.44/ 2007) with interest at 6% per annum thereupon, holding the owner and driver of the offending autorickshaw liable to pay the said compensation and directed them to deposit the said compensation amount along with interest at the rate of 6% p.a and absolved the Insurance Company of its liability. It is against the said common judgment and award passed by the Tribunal, these claimants have filed M.F.A.No.7763 of 2012 (claimant in M.V.C.No.44 of 2007), M.F.A.No.2409 of 2013 (claimant in M.V.C.No.42 of 2007) and M.F.A.No.2410 of 2013 (claimant in M.V.C.No.43 of 2007), seeking enhancement of compensation.
10. Heard the arguments from both sides and perused the materials placed before this Court.
11. Learned counsel for the claimant/appellant in all these cases submitted that the compensation awarded by Tribunal under various heads is on the lower side.
He submitted that even though the evidence of the claimants as PW-1, PW-2 and PW-3 clearly shows that all of them were agriculturists and had an income of `6,000/- per month, still, the Tribunal erred by taking their income at only `100/- per day.
He also submitted that the quantum of compensation awarded towards medical attendant charges and transportation is also on the lower side.
12. Per contra, the learned counsels for second Respondent - Insurer in these three appeals in their argument submitted that the Tribunal has considered all the materials and evidence placed before it and has awarded a just and reasonable compensation which does not warrant any interference at the hands of this Court.
13. The claimants in their memorandum of appeals have taken a contention that the quantum of compensation awarded by the Tribunal under various heads are all meagre. Further stating that the Tribunal ought to have awarded the compensation as claimed by them, they have prayed for allowing the appeals.
14. The present appeals being the claimants’ appeals and the respondents having not preferred either cross-objection or a counter appeal, the question of occurrence of accident on the date, time and place as alleged by the claimants and also the alleged rash and negligent driving on the part of the driver of the offending vehicle is not in dispute. The only question that is required to be considered is about the reasonableness of the quantum of compensation awarded and the liability of the insurer to pay the compensation amount and to recover it subsequently from the owner of the offending vehicle.
15. In all these three appeals, the claimants/appellants have stated that they were agriculturists as on the date of the accident and each of them was earning not less than a sum of `6,000/- per month. Admittedly, none of them have produced any material with respect to their avocation or with respect to their monthly income. As such, the Tribunal has taken the notional income at the rate of `100/- per day and awarded compensation with the said basic notional income. The co-ordinate Benches of this Court are taking income for the relevant year ‘2006’ at `3,750/- per month. Therefore, in the absence of any proof for income, the notional income which was prevailing at `3,750/- per month for the year ‘2006’ is to be taken in the case on hand also.
In M.F.A.No.2409/2013 (M.V.C.No.42/2007) 16. The claimant is shown to have sustained fracture to right femur at hip and mid shaft and also fracture to right patella. The Wound Certificate at Ex.P3 and OPD slip at Ex.P7 corroborated by the medical evidence of PW-4 supports the same. The medical records also show that he was admitted as in- patient in Bapuji Hospital for few days. Considering the nature of injuries, the Tribunal has awarded a sum of `50,000/- towards ‘pain and suffering’ and a sum of `20,000/- towards ‘discomfort in future life’ which may also be inclusive of compensation towards ‘loss of amenities’ and the same being just and reasonable, I do not want to interfere in it.
17. The compensation towards ‘medical expenses’ at `20,429/- being based on actuals after considering the medical bills and prescriptions produced by the claimant, I do not want to interfere in it.
18. However, towards ‘disability’, in view of the fact that the monthly income of the claimant is taken at `3,750/-, the compensation amount varies. The percentage of disability arrived at by the Court below having found well reasoned, it does not warrant any interference. As such, retaining the percentage of disability at 11%, age of the claimant and the applicable multiplier as it is, the quantum of compensation towards ‘loss of future income’ (disability) would work out as below:-
Rs.3,750/- (income per month) x 12 (months) x ‘15’ (multiplier) x 11% (disability) = `74,250/-.
After deducting a sum of `59,400/- awarded by the Tribunal under the above head, the claimant would be entitled to a difference amount of `14,850/- towards ‘loss of future income’ (disability).
19. Towards ‘medical attendant charges and transportation’, since the medical records with respect to the period during which the claimant was in-patient in the Hospital is quite a bit longer, the medial attendant charges requires enhancement by a sum of `5,000/-.
20. Considering the nature of injuries suffered by the claimant which were multiple fractures, the argument of the learned counsel for the appellant that the injured must have taken not less than two months of bed rest, cannot be ignored. As such, towards ‘loss of income during laid up period’, he is entitled to a sum of `7,500/- @ `3,750/- per month for a period of two months.
21. Thus, the claimant/appellant in M.F.A.No.2409 of 2013 (M.V.C.No.42 of 2007) would be entitled for enhancement of compensation of a sum of `27,350/-, which is in addition to the compensation of `1,54,829/- already awarded by Tribunal.
In M.F.A.No.2410/2013 (M.V.C.No.43/2007) 22. The appellant in this appeal is shown to have sustained fracture to right tibia as per the Wound Certificate at Ex.P25 and discharge card at Ex.P26. The quantum of compensation of a sum of `25,000/- awarded by the Tribunal towards ‘pain and suffering’ being just and reasonable does not warrant any interference in it.
23. The compensation awarded towards ‘medical expenses’ at `3,527/- being on actuals after considering the medical bills and prescriptions also does not warrant any modification.
24. The compensation towards ‘discomfort in future life’ (loss of amenities) which is awarded at `10,000/- being a just and fair compensation, also does not warrant any interference at the hands of this Court.
25. However, the compensation towards ‘disability’ requires modification since the income of the claimant is now taken at `3,750/- per month. Retaining the percentage of disability at 5% as it is, and the multiplier of ‘17’ applicable to the case of the claimant, the quantum of compensation towards ‘disability’ (future loss of income) would arrive at `38,250/- [i.e. `3,750/- (income per month) x 12 (months) x’17’ (multiplier) x5% (disability]. After deducting a sum of `30,600/- awarded by Tribunal under the said head, the appellant would be entitled for compensation amount of a sum of `7,650/- in the form of enhancement under this head.
26. Towards medical attendant charges and transportation, considering the nature of injuries sustained by him and the period during which the appellant was in-patient in the hospital, he is entitled for enhancement of a sum of `3,000/- towards ‘medical attendant charges and transportation’.
27. Considering the nature of injuries suffered by the claimant, the argument of the learned counsel for the appellant that the injured must have taken not less than one month bed rest, cannot be ignored. As such, towards ‘loss of income during laid up period’ for one month, he is entitled to a sum of `3,750/-.
28. Thus, the claimant/appellant in M.F.A.No.2410 of 2013 (M.V.C.No.43 of 2007) would be entitled for an enhancement of compensation of a sum of `14,400/-, which is in addition to the compensation of `72,127/- already awarded by Tribunal.
In M.F.A.No.7763/2012 (M.V.C.No.44/2007) 29. The appellant in this appeal has sustained fractures to right tibia, right fibula and radius. The Wound Certificate at Ex.P23, discharge card at Ex.P13 so also the outpatient slips at Exs.P14 to 17 reveals same. The Tribunal considering the injuries suffered by the claimant, has awarded a sum of `40,000/- towards ‘pain and suffering’ which being just and reasonable does not require any interference at the hands of this Court.
30. The compensation towards ‘Loss of comforts and amenities’ awarded by Tribunal at `15,000/- being just and reasonable and towards medical bills (medical expenses) at `21,348/- being on actuals based on the medical bills and prescriptions, the same do not warrant any modification.
31. However, considering the nature of injuries sustained and the period during which the claimant was in-patient in the Hospital, the compensation awarded towards ‘medical attendant charges and transportation’ deserves an enhancement by a sum of `4,000/-.
32. Considering the nature of injuries suffered by the claimant which were multiple fractures, the argument of the learned counsel for the appellants that the injured must have taken not less than two months of bed rest, cannot be ignored. As such, towards ‘loss of income during laid up period’, he is entitled for a sum of `7,500/- @ `3,750/- per month for a period of two months.
33. However, the compensation towards ‘disability’ requires modification since the income of the claimant is now taken at `3,750/- per month. Retaining the percentage of disability at 10% as it is, and the multiplier of ‘15’ applicable to the case of the claimant, the quantum of compensation towards ‘disability’ (future loss of income) would arrive at `67,500/- [i.e. `3,750/- (income per month) x 12 (months) x’15’ (multiplier) x 10% (disability]. After deducting a sum of `54,000/- awarded by Tribunal under the said head, the appellant would be entitled for compensation amount of a sum of `13,500/- in the form of enhancement under this head.
34. Thus, the claimant/appellant in M.F.A.No.7763 of 2012 (M.V.C.No.44/2007) would be entitled for enhancement of compensation of a sum of `25,000/-, which is in addition to the compensation of `1,34,348/- already awarded by Tribunal.
35. Barring the above, the claimants/appellants in these three appeals are not entitled for compensation under any other heads or for enhancement of compensation under any other heads.
36. The second argument of the learned counsel for the appellants was that the Tribunal has committed an error by exonerating the second Respondent - Insurer from its liability to pay the compensation and if required, to recover the same from the owner of the offending vehicle, only on the ground that the driver of the offending vehicle did not possess a valid permit as on the date of the accident.
Learned counsel further submits that though he does not dispute that the offending vehicle did not possess a valid permit, but undisputedly the vehicle was covered with an insurance policy as on the date of the accident. In such a scenario, in view of the judgment of the Hon’ble Apex Court in the case of Amrit Paul Singh and another Vs. TATA AIG General Insurance Co. Ltd., and others, reported in A.I.R. 2018 SC 2662, the Insurer is required to pay the compensation amount, however, he can recover the same from the owner of the vehicle.
37. Per contra, learned counsel for the Insurance Company submits that in view of the admitted fact that the offending vehicle did not possess a valid permit at all, question of pay and recovery does not arise.
38. Admittedly, in the case on hand, the alleged offending vehicle was an autorickshaw, which did not possess a valid permit to ply on the road as on the date of accident. The Hon’ble Apex Court in Amrit Paul Singh’s case (supra), wherein the offending tractor had no necessary permit at the time of the accident, still was pleased to hold that the insurer of the vehicle is liable to pay the awarded amount of compensation to the claimant with liberty to it to recover the same from the owner of the offending vehicle.
39. In the case on hand, in view of the said principle laid down by the Hon’ble Apex Court even though the offending vehicle did not possess a valid permit, the Insurer is required to pay the compensation along with awarded interest to the claimants/appellants and thereafter it would be at liberty to recover the same from the owner of the offending vehicle.
Accordingly, I proceed to pass the following:-
O R D E R [i] All the three appeals, viz.
M.F.A.No.7763/2012, M.F.A.No.2409/2013 and M.F.A.No.2410/2013 are allowed in part;
[iii] The common judgment and award dated 14-03-2012 passed in M.V.C.No.44/2007, M.V.C.No.42/2007 and M.V.C.No.43/2007 respectively by the learned Senior Civil Judge & Additional Motor Accident Claims Tribunal, Harihara, is hereby modified as follows:-
In M.F.A.No.7763/2012 (M.V.C.No.44/2007), the compensation awarded at `1,34,348/- is enhanced by an additional sum of `25,000/- (Rupees Twenty Five Thousand Only), thus making the total amount for which the claimant is entitled at `1,59,348/- (Rupees One Lakh Fifty Nine Thousand Three Hundred and Forty Eight Only).
In M.F.A.No.2409/2013 (M.V.C.No.42/2007), the compensation awarded at `1,54,829/- is enhanced by an additional sum of `27,350/- (Rupees Twenty Seven Thousand Three Hundred and Fifty Only), thus making the total amount for which the claimant is entitled at `1,82,179/- (Rupees One Lakh Eighty Two Thousand One Hundred and Seventy Nine Only).
In M.F.A.No.2410/2013 (M.V.C.No.43/2007), the compensation awarded at `72,127/- is enhanced by an additional sum of `14,400/- (Rupees Fourteen Thousand Four Hundred Only), thus making the total amount for which the claimant is entitled at `86,527/- (Rupees Eighty Six Thousand Five Hundred and Twenty Seven Only).
[iv] The direction issued by the Tribunal to Respondent Nos.1 and 3, i.e. owner and driver of the offending vehicle to deposit the compensation amount is hereby set aside;
The second Respondent – Insurance Company is hereby directed to deposit the compensation amount along with accrued interest thereupon. However, the Insurer is at liberty to recover the said amount from the Respondent No.1 - owner of the autorickshaw bearing Registration No.KA-17/4042.
The rest of the order of the Tribunal with respect to awarding the interest, its rate, terms regarding deposit and release of the amount awarded, shall remain unaltered.
Draw the modified award accordingly.
Sd/- JUDGE BMV*