IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR MFA NO. 4437 OF 2015 (M V) BETWEEN Kamalaksha S/o Duggappa Poojary Aged about 31 years R/o Shanthi Nivas Killuru House Pavoor Village Bantwal Taluk D.K. District Pin-574219. ... Appellant (By Sri. G. Ravishankar Shastry, Advocate) AND 1. Mr. John Lawrence D’Souza S/o. Robert D’Souza Aged about 32 years R/o. door No. 3-47, Panela House Pajeer Post and Village Bantwal Taluk, D.K. District Pin-574219.
2. IFFCO TOKIO General Insurance Co. Ltd., Office at: Lalbagh Towers M G Road, Mangaluru – 575003 Represented by its Branch Manager. ... Respondents (By Sri. Anand Kumar , Advocate for R-1 Sri B. Pradeep, Advocate for R-2.) This MFA is filed under Section 173(1) of MV Act against the judgment and award dated 5.3.2015 passed in MVC No. 909/2013 on the file of the VI Additional District and Sessions Judge, D.K., Mangaluru, C/c partly allowing the claim petition for compensation and seeking enhancement of compensation.
This MFA coming on for hearing, this day, the Court delivered the following:
JUDGMENT This appeal is preferred by the appellant/claimant against the judgment and award dated 05.03.2015 passed by the Tribunal in MVC No.909/2013 seeking enhancement of compensation.
2. The factual matrix of the appeal is as under: It is stated in the claim petition that on 18.11.2012 when the appellant was proceeding towards Sajipa from Killoor side riding a motor cycle bearing No.RJ-07/M-1923, at about 7.00 a.m. near Madaka Cross of Pajeer village, a Mahindra pickup bearing No.KA-19/D-5287 came from the opposite direction in a rash and negligent manner on the wrong side of the road and dashed the motor cycle. As a result, accident took place and the appellant had sustained grievous injuries. He was admitted to Justice K.S. Hegde Hospital, Deralakatte, Mangaluru and was an in-patient at the said hospital from 18.11.2012 to 29.11.2012. Thereby he was discharged with advise to take follow up treatment for a period of six months. It is stated that during treatment period, he was unable to move and hence had appointed an attendant paying Rs.200/- per day and that he had spent a sum of Rs.40,000/- towards medical expenses and that he needed Rs.20,000/- for his future treatment. Hence, he had filed a claim petition seeking compensation for the injuries sustained by him in the road traffic accident.
3. In pursuance of issuance of notice, respondent no.1 appeared through counsel but did not file any written statement. Respondent No.2 contested the petition by filing written statement and denied all the averments in the petition in so far as accident and the injuries sustained by the claimant. Based upon the contentions of the parties, the Tribunal framed the issues. In order to establish their case, appellant / claimant got himself examined as PW.1, another witness as PW.2 and the Doctor as PW.3 and got marked 13 documents as per Ex.P1 to P13. The second respondent – Insurance Company attempted to summon the owner of the offending vehicle namely the first respondent but however in spite of serving summons, he did not turn up and produce the relevant documents. Therefore, after giving sufficient opportunity, evidence of the second respondent was taken as nil. The Tribunal after hearing learned counsel for the petitioner as well as respondent insurer, and on evaluation of oral and documentary evidence on record, passed the impugned judgment awarding compensation of Rs.58,000/- with interest at 6% p.a. from the date of petition till its realisation from the first respondent - owner. It is this judgment which is under challenge in this appeal, by urging various grounds.
4. Learned counsel for the appellant / claimant contends that in view of the accident, the appellant had suffered the following injuries:
i) Tenderness over the left shoulder joint ii) Tenderness and swelling over the right leg – lacerated wound – fracture of both the bones of right leg iii) Abrasion over dorsum of right foot iv) Fracture shaft of right tibia Due to the aforesaid injuries, it is stated that the appellant took treatment as an in-patient from 18.11.2012 to 29.11.2012 and also took follow up treatment. Further, the medical records also reveals that the appellant has undergone surgery by way of closed reduction and internal fixation with IMIL nail. In view of the aforesaid injuries and treatment undergone, the learned counsel contends that the award of a sum of Rs.25,000/- is too meagre under the head ‘Pain and suffering’ and the same requires to be enhanced.
It is further contended that the appellant was working as a driver and was earning Rs.8,000/- per month. In view of the accidental injuries, he could not attend to any work for a period of six months. Hence, the learned counsel contends that the Tribunal without taking the same into consideration has awarded a very meagre sum of Rs.2,400/- under the head ‘Loss of income during laid up period’, which also requires to be enhanced. Moreover, the learned counsel submits that the monthly income assessed by the Tribunal at Rs.6,000/- per month is very much on the lower side and the accident having occurred in the year 2012, it ought to have taken the monthly income at Rs.8,000/-.
It is further contended that the Tribunal has also not awarded any amount towards ‘Loss of future income’. Moreover, the appellant had suffered 20% disability to the limb wherein the Disability Certificate was also produced. He submits that non-examining the treated Doctor cannot be a ground to reject the evidence of PW3 Doctor in its entirety. Further, the Tribunal has also failed to grant any compensation towards ‘Loss of amenities in life’. Moreover the Tribunal has also erred in absolving the Insurance Company of its liability, since the Insurance Company has not led any evidence to show that the driver of the offending vehicle did not possess a valid driving licence. Further, the rate of interest awarded at 6% is also on the lower side. Hence, on all these grounds, the learned counsel for the appellant prays for enhancement of the compensation awarded by the Tribunal.
6. Per contra, learned counsel for the respondent- insurer contends that the driver of the offending vehicle did not possess valid and effective driving licence to drive and further the terms and conditions of insurance policy has been violated. It is further contended that the owner of the vehicle has not complied with the requisite provision of Section 134(c) of the MV Act. The owner of the offending vehicle ought to have given the insurer – second respondent the information in writing about the occurrence of the accident mentioning the Insurance policy details, date time and place of accident, particulars of the persons killed or injured in the accident and also provide details of the name of the driver and the particulars of his driving licence. This requirement has not at all been complied with by the owner of the offending vehicle who was the person responsible to do it. When such being the case, the learned counsel contends that it was not the Insurer’s liability to pay the claimant, having regard to a recent decision of the Apex Court in the case of PAPPU AND ORS. Vs. VINOD KUMAR LAMHA AND ANR. (AIR 2018 SC 592). He contends that as per the said ruling, the Insurance Company shall pay the claim amount awarded by the Tribunal to the claimant in the first instance, however, with liberty to recover the said amount from the owner of the vehicle, in accordance with law.
Further, he contends that the Tribunal, on appreciation of the evidence 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.
7. In the background of the contentions taken by learned counsel for the appellant and learned counsel for the respondent – insurer and on a perusal of the evidence on record, it is relevant to state that there is no dispute with regard to appellant having met with an accident as on 18.11.2012 and having sustained injuries as contended by the learned counsel for the appellant. The appellant aged 29 years was a driver by avocation and the accident having occurred in the year 2012, I find that the Tribunal erred in taking his monthly income at Rs.6,000/-. It ought to have been taken at Rs.8,000/-. Since the accident is of the year 2012, I hereby take the monthly income of the deceased at Rs.8,000/- in order to arrive at the compensation. The appellant had been an in-patient for 11 days and he had suffered severe injuries including fracture of shaft of right tibia and he would have been unable to attend to his work for a minimum period of three months. Hence, I find that it would be just and proper to award Rs. 24,000/- (Rs.8,000/- x 3) towards ‘Loss of income during laid up period, as against Rs.2,400/- awarded by the Tribunal.
Further, the appellant had suffered to a great extent due to the accident and due to the pain, he was unable to move by himself and was able to move only with the help of an attendant. Hence, I find that the compensation of Rs.25,000/- awarded towards ‘Pain and suffering’ is on the lower side and it requires to be enhanced. I find that it would be just and proper to enhance another sum of Rs.25,000/- towards the said head. Hence, it would come to a total compensation of Rs.50,000/- towards ‘Pain and suffering’.
Though it is contended that the treated Doctor had not given evidence as regards the disability sustained, it is relevant to note that the appellant had suffered permanent disability of the right lower limb to an extent of 20% and therefore, compensation towards ‘Future prospects’ requires to be considered in this appeal. Hence, I hereby award a compensation of Rs.50,000/- towards ‘Future prospects’.
Further, in view of the Wound Certificate issued by the Doctor at Exhibit P3, I find that the appellant has to be awarded compensation towards ‘Loss of amenities’. Hence, I hereby award a sum of Rs.25,000/- towards ‘Loss of amenities’.
8. In view of the discussion made above and with the altered factors, the compensation is re-worked out as under:-
prospects amenities
Future Loss of TOTAL Thus, in all, the claimants are entitled to a total compensation of Rs.1,79,000/- as against Rs.57,400/- awarded by the Tribunal.
Further, as regards the liability aspect is concerned, I find that the requirement under Section 134(c) of the MV Act has not been complied with by the owner of the offending vehicle. If the said requirement has not been complied with, the Apex Court in the case of PAPPU AND ORS. Vs. VINOD KUMAR LAMHA AND ANR. (AIR 2018 SC 592), has opined as under:
“Insurance Company can be fastened with liability on basis of valid insurance policy only after basic facts are pleaded and established by owner of offending vehicle – that vehicle was not only duly insured but also that it was driven by authorised person having valid driving licence. Without disclosing name of driver in Written Statement or producing any evidence to substantiate fact that copy of driving licence produced in support was of person who, in fact was authorised to drive offending vehicle at relevant time, owner of vehicle cannot be said to have extricated himself from his liability. Insurance Company would become liable only after such foundational facts are pleaded and proved by owner of offending vehicle. However, considering the fact that the owner of vehicle had produced insurance certificate indicating that the offending vehicle was comprehensively insured by the insurance company and in order to subserve ends of justice, insurance company is directed to pay the claim amount awarded by the Tribunal to claimants in the first instance, with liberty to recover the same from the owner of the vehicle in accordance with law.”
Hence, I find justification in the contention of the learned counsel. In view of the decision of the Apex Court in Pappu’s case (supra), the Insurer is required to pay the compensation awarded by the Tribunal and then would have to recover the same from the owner of the offending vehicle. Accordingly, I proceed to pass the following:
ORDER Accordingly, the appeal is allowed in part. The impugned judgment and award dated 05.03.2015 passed by the Tribunal in MVC No.909/2013 is hereby modified. The claimant/appellant is entitled for enhanced compensation of Rs.1,21,600/- with interest @ 6% p.a. from the date of petition till realisation. The enhanced compensation shall be paid and satisfied by the insurer – IFFCO TOKIO General Insurance Co. Ltd., in the first instance, with liberty to recover the same from the owner of the offending vehicle – Respondent No.1, in accordance with law.
The insurer shall deposit the enhanced compensation amount along with interest, before the tribunal within four weeks. The amount already deposited, shall be adjusted. The same shall be disbursed to the claimant as per the award, on proper identification. However, the impugned judgment and award, in so far as it relates to the rate of interest, apportionment and deposit is concerned, shall remain unaltered.
Amount in deposit if any in this appeals, shall be transmitted to the concerned tribunal forthwith.
There shall be no order as to the costs. Office to draw the decree accordingly.
SD/- JUDGE KS