IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 3RD DAY OF APRIL, 2019 BEFORE:
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MISCELLANEOUS FIRST APPEAL NO.4420 OF 2016 [MV] BETWEEN K.SRINIVAS @ KADABASRINIVAS, S/O. KADABA SREEVATSA, AGED ABOUT 48 YEARS, R/AT NO.1111, 2ND MAIN, K.S.TOWN, BANGALORE SOUTH, KENGERI UPANAGAR, BANGALORE-560 060. ... APPELLANT [BY SRI.MAHADEVA SWAMY P., ADVOCATE] AND 1. THE MANAGER, TATA AIG GEN. INS. CO. LTD., NO.69, 2ND FLOOR, J.P. & DEVI JAMBUKESHWAR ARCADE, MILLERS ROAD, BANGALORE-560 052.
2. AMARJEET SINGH (HUF), B-4/141, PASCHIM VIHAR, DELHI-110 087. ... RESPONDENTS [BY SRI. B.PRADEEP, ADVOCATE FOR R1. R2 - SERVED] * * * THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 22.03.2016 PASSED IN MVC NO.2617/2014 ON THE FILE OF THE XIX ADDITIONAL SMALL CAUSE JUDGE AND MACT, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR FINAL HEARING, THIS DAY THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The injured/claimant has preferred this appeal, seeking enhancement of compensation awarded by the Tribunal in MVC No.2617/2014 on the file of the MACT., Bengaluru, wherein a total compensation of Rs.1,38,798/- has been awarded.
2. I have heard the learned counsel appearing for the appellant and also the learned counsel appearing for respondent No.1/Insurance Company.
3. It is the case of the appellant that on 12.06.2014 at about 6.10 p.m., while he was proceeding on a motorcycle bearing reg. No.KA-05/EN-7013 on Mysuru road, near Kempamma Temple, a lorry bearing reg. No.HR-55/K-9022 driven by its driver in high speed and in a rash and negligent manner came and dashed against the motorcycle from behind. As a result of which he fell down from the motorcycle and sustained injuries. He was shifted to R.R. Hospital and after first-aid he was shifted to Shreya Hospital, Kengeri, wherein he was treated as an in-patient till 16.06.2014 etc.
The Tribunal after considering the evidence and material, awarded a total compensation of Rs.1,38,798/- with interest at the rate of 6% p.a. Further, held that the driving licence produced by the driver of the offending vehicle was fake as such, the insurer is not liable to indemnify the liability of the owner of the offending vehicle and thus fastened the liability on the owner of the offending vehicle to pay the compensation.
4. The learned counsel for the appellant submits that the appellant has suffered undisplaced fracture injury to the right iliac bone of left sacrum and he was an in-patient in the hospital from 12.06.2014 to 16.06.2014. He further submits that a huge amount has been spent towards medical expenses and therefore, the total compensation awarded by the Tribunal is inadequate. The learned counsel for the appellant further contended that the Tribunal was not justified in fastening the liability on the insured on the ground that there was no driving licence possessed by the driver of the offending vehicle and even in such a case, the Insurance Company is liable to pay. Accordingly, he sought to allow the appeal.
Per contra, learned counsel appearing for respondent No.1/Insurance Company seeks to dismiss the appeal contending that the Judgment and Award passed by the Tribunal is in accordance with law.
5. The accident in question involving the offending vehicle i.e., lorry bearing reg. No.HR-55/K-9022, due to which the appellant had sustained injuries is not seriously disputed. The said lorry was insured with the 1st respondent herein. The Tribunal has come to the conclusion that the accident was solely on account of the rash and negligent driving by the driver of the offending lorry. The said finding is on the basis of FIR-Ex.P1, complaint-Ex.P2 as well as the charge sheet-Ex.P8.
6. Exs.P6 and 7 are the wound certificates in respect of the injuries sustained by the appellant. Ex.P6 is the wound certificate issued by Rajarajeshwari Medical College Hospital and Ex.P7 is issued by Shreya Hospital. The same discloses that the appellant had sustained 3 simple injuries such as lacerated wound over back of hand, laceration over the right big toe and contusion over right hip and one grievous injury i.e., undisplaced fracture injury to the right iliac bone of left sacrum. Considering the said injuries, it cannot be said that the compensation of Rs.45,000/- awarded towards pain and agony is on the lower side. The appellant has produced medical bills to the tune of Rs.25,798/- as per Ex.P9. The Tribunal has awarded the said sum towards medical expenses.
7. According to the appellant, he was working as a Manager in Rukmini Industries and earning Rs.15,000/- p.m. He was an in-patient for a period of about 5 days. He has suffered undisplaced fracture injury to the right iliac bone of left sacrum. The Tribunal has awarded a sum of Rs.24,000/- towards loss of income during the laid-up period. The same is just and proper. A sum of Rs.25,000/- awarded towards loss of enjoyment and amenities in life, Rs.10,000/- awarded towards food and nourishment and Rs.9,000/- awarded towards attendant charges are also just and proper, hence, no interference is called for with regard to the total compensation of Rs.1,38,798/- awarded by the Tribunal for the injuries suffered by the appellant.
8. The Tribunal after considering the documents at Exs.R1 and R2 has held that the driver was not holding the driving licence as on the date of accident. It was observed that as per the documents produced, the same clearly shows that the licence was issued in the name of one Praveen Kumar and then it came to be renewed in the name of the driver of the offending lorry. Considering these aspects, it was held that the driver was not holding licence at the time of the accident. Accordingly, the Tribunal fastened the liability on respondent No.2/owner of the offending vehicle. However, in view of the Judgment of the Hon’ble Apex Court in the case of Pappu and Ors. Vs. Vinod Kumar Lamba and Anr. Reported in AIR 2018 Supreme Court 592, even if the driver of the offending vehicle was not holding a driving licence, the primary liability is on the Insurance Company to pay compensation and then to recover the same from the owner of the vehicle. With that observation, I pass the following:
ORDER The appeal is allowed in part. The Judgment and Award dated 22.03.2016 passed in MVC No.2617/2014 on the file of the XIX Additional Small Causes Judge and MACT., Bengaluru is hereby modified.
The compensation of Rs.1,38,798/- with interest at 6% p.a. as awarded by the Tribunal is confirmed. Respondent No.1/Insurance Company shall pay the compensation to the claimant with liberty to recover the same from the insured.
Respondent No.1/Insurance Company shall deposit the compensation amount as awarded by the Tribunal within a period of four weeks from the date of receipt of a copy of this Judgment.
The claimant/appellant is permitted to withdraw the entire amount of compensation and the same shall be released in his favour after proper identification.
Sd/- JUDGE.
Ksm*