IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF JUNE, 2019 BEFORE THE HON’BLE MR. JUSTICE K.SOMASHEKAR MISCELLANEOUS FIRST APPEAL No.4133/2014 (MV) BETWEEN K.TULSIDAS BHAT, S/O. ANANTHA BHAT, AGED ABOUT 61 YEARS, R/O NEAR OLD BUS STAND, KUNDAPURA, UDUPI DISTRICT-576201. ... APPELLANT (BY SRI.NAGARAJA HEGDE, ADV.,) AND:
1. JOHN LEWIS @ CHARLI S/O LATE PETER B. LEWIS PALS, AGED ABOUT 64 YEARS, R/O RAMA MANDIR ROAD, KUNDAPURA, UDUPI DISTRICT-576201.
2. PRASANNA PRABHU, S/O K.ANANTHA PRABHU, AGE :MAJOR, R/O MAIN ROAD, KUNDAPURA, UDUPI DISTRICT-576201.
3. NATIONAL INSURANCE CO.LTD., BRANCH OFFICE, KUNDAPURA, UDUPI DISTRICT-576201.
4. P.SUNDAR S/O LATE CHANDA, AGED ABOUT 65 YEARS, R/O N.H.17, HOSABETTU VILLAGE, MANJESHWARA, KASARAGOD TALUK-581342.
5. M/S. SUPREME MOTORS, BALMATTA ROAD, MANGALORE-575002.
6. ORIENTAL INSURANCE CO. LTD., BRANCH OFFICE, KUNDAPURA-576201.
(BY SRI. E.R.DIWAKAR, ADV., FOR R3;
... RESPONDENTS NOTICE TO R1, R2, R4 TO R6 DISPENSED WITH V/O/DTD 21.01.2015) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:27.09.2013 PASSED IN MVC NO.457/2006 ON THE FILE OF THE ADDL. DIST. AND SESSIONS JUDGE AND ADDL. MACT, UDUPI (SITTING AT KUNDAPURA), KUNDAPURA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Though this appeal is listed for admission, with the consent of learned counsel on both sides, the matter is taken up for final disposal.
2. This appeal is directed against the judgment and award rendered by the Addl. District and Sessions Judge and Addl. MACT, Udupi, Kundapura dated 27.09.2013 in MVC No.457/2006 seeking enhancement of compensation.
3. The factual matrix of the appeal is as under: It is evident in the claim petition that on 04.08.1999 at about 4-45 hours, the injured petitioner was traveling from Bhatkal towards Byndoor side as an inmate in a car bearing Reg.No.KA-20-M-999 belongs to the 2nd respondent driven by the 1st respondent in a greater speed. At that time, the said Car reached near a place Othinene of Paduvary Village, Kundapura Taluk. The 1st respondent said to be the driver of the afore said car was not able to control the speed of the car and hit to the back portion of the Lorry bearing Reg.No.CRQ- 7533 which was parked on the eastern side of NH-17, by which the petitioner and other inmates of the car sustained injuries. Immediately injured petitioner was shifted to Vijayashree Hospital, Mangalore and again admitted to Kadri Maternity and Nursing Home, Mangalore wherein he has taken treatment as an inpatient. The injured petitioner incurred huge amount for his treatment. The injured was working as a Senior Clerk at Urban Emirates and earning 4,952/- Dhs per month. The claimant has made a petition before the Tribunal for seeking enhancement of compensation.
4. 1st respondent is the driver of the aforesaid car, 2nd respondent is the owner of the said car and 3rd respondent is the insurer of the said car. 4th respondent is the driver of the said lorry, 5th respondent is the owner of the said lorry and 6th respondent is the insurer of the aforesaid lorry.
5. On service of notice, 2nd respondent did not participate in the proceedings. Respondent Nos. 1, 3, 4 and 6 entered appearance through their respective counsel, respondent Nos. 3, 5 and 6 have filed their written statement resisting the claim petition filed by the petitioner. Respondent No.3 said to be the National Insurance Company has contended that the accident occurred due to negligence on the part of the driver of the lorry. The driver of the car is not having effective driving licence to drive the class of vehicle involved in the accident. As such, there is a clear violation of policy conditions by the 2nd respondent. The said car has been insured with this respondent and liability if any is restricted to the terms and conditions of the insurance policy. The 3rd respondent has further contended in the additional written statement that as per the insurance policy issued by this respondent no extra premium has been collected cover the risk of inmate in the private car.
6. The 6th respondent has also filed written statement contending that accident occurred solely due to the rash and negligent driving of the driver of the car bearing Reg. No.KA-20-KM-999. Hence, this respondent is not liable to pay any compensation to the petitioner for the fault of the driver of the car bearing Reg. No.KA- 20-KM-999. 6th respondent further contended that lorry bearing Reg.No.CRQ-7533 stood insured with this respondent and the liability, if any, of this respondent is governed by terms and conditions of the policy of the insurance issued in favour of 1st respondent.
7. Based upon the pleadings of the parties, the Tribunal has framed issues and given findings by analyzing the evidence of PW1 who is injured in the said accident. To prove the said injury, PW1 produced Ex.P3- Wound Certificate, Ex.P10-Disablity Certificate and Ex.P11-X-ray. These are all the vital documents produced by the petitioner in order to claim the suitable compensation. The Tribunal after appreciating the oral and documentary evidence, awarded compensation of Rs.3,48,000/- with 6% interest per annum. The same has been challenged under the various grounds.
8. Sri. Nagaraja Hegde, learned counsel appearing for the appellant has taken me through the evidence of PW1 said to be injured and also submitted disability certificate issued by PW2-doctor. PW2 has not treated the petitioner, examined only for the purpose of issuing the disability certificate and he has stated that the petitioner has permanent disability of 59%. But same has not been considered by the Tribunal in a proper perspective. The petitioner was working as a Senior Clerk at Custom Office, Sharja, Abhudhabi and earning Dhs. 4,592/- per month. But the Tribunal has not awarded suitable compensation by considering the said aspects. Hence, prays for enhancement in the compensation.
9. Per contra, Sri. E.R.Diwakar, learned counsel appearing for the respondent No.3 who has taken me through the evidence of PW1 said to be the injured has spent more than Rs.60,000/- towards medical expenses. But he has produced the medical bills as per Ex.P7 to the tune of Rs.9,000/-. The same has been considered and awarded Rs.9,000/- towards the medical expenses. PW1 was working as a Senior Clerk in Custom Office, Sharja and earning Dhs 4,592/- per month and it has been stated in the impugned judgment as Rs.55,000/- per month. The claimant has produced a certificate of service which is marked as Ex.P6. But in the cross examination, he has stated that on account of injury, he was compelled to give resignation for his post as a Senior Clerk in Custom Office, Sharja. But certificate of service issued by United Arab Emirates, Government of Sharjah Department of Sea Ports and Customs did not disclose the reasons for his resignation. He has admitted in the cross examination that he has paid Rs.12 to 13 lakhs in the form of benefit but he has not been examined the Author of the document issued as per Ex.P6. In case the Sharjah Government paid Dhs 4,592/- certainly, it would be through the bank transaction, but the petition has not produced bank passbook so also the bank records. By considering all these facts, the Tribunal took his income as Rs.15,000/- per month. The petitioner took a treatment as an inpatient at New Al Kasmia Hospital of Sharja from 04.08.1999 to 20.09.1999. Though, PW1 has stated that he took treatment as an inpatient in the said Hospital at Sharjah, but he has not produced any document to prove the same. PW2-Doctor has stated in his evidence that he has not treated the petitioner and examined only for the purpose of issuing the disability certificate. However, considering the injury and treatment period of three months, Tribunal has rightly awarded Rs.45,000/- towards loss of income during laid up period. Learned counsel for the respondent No.3 further submitted that the Tribunal on appreciation of the evidence and material on record has rightly assessed the income of the injured and awarded just and fair compensation, which does not call for interference and prays for dismissal of the appeal.
10. In this back drop of the strenuous contention taken by the learned counsel for the appellant so also the similar strenuous contention of the learned counsel for respondent No.3, it is relevant to state that on 04.08.1999 at about 4.45 hours i.e., in the wee hours the incident has taken place and injured sustained injuries and also took treatment in Vijayshree Hospital, Mangalore and again took treatment in Kadri Maternity and Nursing Home, Mangalore as an inpatient totally for a period 45 days. There is no dispute with regard to the job of the petitioner in Sharjah as United Arab Emirates, Government of Sharjah Department of Sea Ports and Customs has issued a certificate of service to the petitioner.
11. The claim made against the respondent Nos.
1, 2, 4 to 6 has been rejected by the Tribunal and liability has been saddled on respondent No.3. 3rd respondent has issued insurance policy in respect of car bearing Reg.No.KA-20-M-999 which was driven by the 1st respondent in the claim petition has been arraigned but the 2nd respondent said to be the owner of the said car and it has been insured with the 3rd respondent. PW1 has stated in his evidence there was no parking Board and the said lorry was parked at the curved place and it is further admitted in the cross examination that the said lorry was parked side by the road. Therefore accident might have taken place. If the parking board kept away by the side of the lorry, certainly it ought to have been avoided the accident. But the said lorry was parked at curve place only on the ground it cannot be said that there was a composite negligence on the part of the aforesaid lorry but the 3rd respondent has not examined the driver of the aforesaid lorry or driver of the car who have to be explained the manner in which accident took place and same as averred in the claim petition. These are all evidence found place in the regard but in this appeal it requires to be re-appreciated of the evidence of PW1 who has suffered with the injuries. Ex.P1 is the wound certificate and so also the disability certificate as per Ex.P10 issued by PW2 but it is stated that PW2 is not a treated doctor, he has examined the injured only for the issuance of the disability certificate and he has stated in his evidence that injured sustained 59% permanent disability but in the cross examination he has stated that injured sustained permanent disability to the whole body to the extent of 50%. The evidence of PW2 clearly reveals that he has not treated the claimant said to be the injured, he examined PW1 only to issue disability certificate as per Ex.P10. Based on the disability certificate and evidence of PW2, the Tribunal has been considered disability as 10%. But keeping in view of the evidence of PW1-injured and the evidence of PW2-doctor who examined the injured and issue disability certificate, the Tribunal has held the disability at 10% are found to be inadequacy and there is no basis for having taken the same. Hence same requires to be held at 20% disability instead of 10%. But there is no salary certificate has produced by the claimant in order to seek enhancement of compensation by raising his income. Even though certificate of service produced as per Ex.P6, but same does not reveal the exact salary of petitioner. Therefore the income is held by the Tribunal in a sum of Rs.15,000/- has to be maintained. Insofar as the multiplier is concerned the Tribunal has taken 13 in view of the Salrla Verms and others Vs. Delhi Transport Corporation and another and same is reasonable. Therefore, it works out 15,000X12X13X20% =Rs.4,68,000/-. Further, an amount of Rs.10,000/- is enhanced towards ‘Loss of amenities’ and Rs.10,000/- is enhanced towards ‘Conveyance and Attendant charges’.* *corrected vide court order dated 24.07.2019 12. However, the compensation awarded by the Tribunal under other heads is just and reasonable and does not call for interference. Thus, in all, the claimant is entitled for total compensation is Rs. 6,02,000/- * as against Rs. 3,48,000/- awarded by the Tribunal.
13. Accordingly, the appeal is allowed in part.
In modification of the impugned judgment and award dated 27.09.2013 passed by the Additional District and Session’s Judge and Addl.M.A.C.T., Udupi in MVC No.457/2006 the compensation payable to the claimant is enhanced from Rs.3,48,000/- to Rs. 6,02,000/- *. The enhanced compensation would comes to Rs.2,54,000/-.
The 3rd Respondent-Insurance Company shall deposit the enhanced compensation with interest at 6% from the date of filing the petition* before the Tribunal within six weeks from the date of receipt of certified copy of this judgment and on such deposit, the same shall be disbursed to the claimant, on proper identification. * * corrections carried out vide court order dated 24.07.2019 * .
There shall be no order as to the costs. Office to draw the decree accordingly.
* Deleted vide court order dated 24.07.2019 Sd/- JUDGE JS/-