IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 7TH DAY OF MARCH, 2019 BEFORE THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MFA NO.5200 OF 2014 [MV] BETWEEN SMT. LAKSHMI, W/O. SOMAIAH @ SUBRAMANI, AGED ABOUT 37 YEARS, R/AT NO.43, 6TH CROSS, S.B. CILINY, ANAND NAGAR, BUVANESHWARANAGAR SLUM, BANGALORE-560 024.
... APPELLANT (BY SRI.MAHADEVA SWAMY P., ADVOCATE) AND 1. THE MANAGER, RELIANCE GENERAL INSURANCE CO. LTD., EAST WING, 5TH FLOOR, 28, CENTENARY BUILDING, MG ROAD, BANGALORE-560 001.
2. RAJA, S/O. CHANNABORAIAH, NO:16/1, 14TH CROSS, AD HALLI, MAGADI ROAD, BANGALORE-560 075.
... RESPONDENTS (BY SRI.H.S. LINGARAJ, ADVOCATE FOR R1, R2-SERVICE OF NOTICE HELD SUFFICIENT VIDE COURT ORDER DATED 12.07.2018) THIS MFA FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 27.05.2014 PASSED IN MVC NO.39/2011 ON THE FILE OF THE XVIII ADDITIONAL JUDGE, MEMBER, MACT, COURT OF SMALL CAUSES, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ADMISSION, THIS DAY THE COURT MADE THE FOLLOWING:
JUDGMENT Though this appeal is listed for admission, the same is taken up for final disposal with the consent of both the parties.
The appeal is preferred by the claimant seeking enhancement of compensation awarded by the Tribunal in MVC No.39/2013, whereby a total compensation of Rs.3,67,000/- has been awarded for the injuries sustained by her in a road traffic accident.
2. I have heard the learned counsel for the appellant and the learned counsel appearing for the Respondent No.1-Insurance Company.
3. The case of the appellant – claimant is that on 15.12.2009 at about 5.45 a.m., when she was traveling in a goods Auto on B.B. Road at Sahakarnagar, opposite Big market, at that time, the driver of the auto bearing registration No.KA-03-A- 9212 drove the same in a rash and negligent manner and while taking a sudden right turn, hit the back side of the goods auto, as a result of which she sustained grievous injuries and took treatment in the hospital. It is the further case of the appellant that she was aged about 33 years eking out her livelihood as a vegetable vendor and earning a sum of Rs.6,000/- per month and on account of the accidental injury, she suffered visual disability etc.
4. The Tribunal awarded a total compensation of Rs.3,67,000/- with interest at 6% per annum under the following heads :
Pain and sufferings Rs.50,000-00 Loss of amenities and Happiness Rs.30,000-00 Medical and incidental charges Rs.32,000-00 Loss of earnings during The period of treatment Rs.15,000-00 Loss of future earnings Due to disability Rs.2,40,000-00 Total Rs.3,67,000-00 5. The Tribunal after observing that the owner of the offending vehicle has not produced the documents of the vehicle such as RC, FC and permit and driving license of the driver of the vehicle, held that an adverse inference has to be taken against the owner holding that there is violation of conditions of the policy and thereby held that the owner of the vehicle alone is liable to pay the compensation, exonerating the Insurance Company from its liability to indemnify the owner of the offending vehicle.
6. Assailing the aforesaid judgment and award passed by the Tribunal, the learned counsel for the appellant-claimant vehemently contended that the total compensation awarded by the Tribunal is not commensurate with the injuries and disability suffered by the appellant. It is further contended that the Tribunal is not justified in fixing the liability on the owner of the vehicle on the ground that the Respondent No.2 – owner has not produced the vehicle documents namely Registration Certificate, Fitness certificate and driving license of the driver of the offending vehicle. He would submit that the claimant is a 3rd party as such he is entitled for compensation from the Insurer of the vehicle since admittedly there is a valid insurance policy to the vehicle.
7. Per contra, the learned counsel appearing for Respondent No.1 – Insurance Company would justify the total compensation awarded by the Tribunal contending that the same is just and reasonable. He would further contend that the Tribunal was justified in fastening the liability on the owner of the vehicle since the driver of the offending vehicle was not possessing the driving license and also no vehicle documents such as RC, FC and permit were produced. Accordingly, seeks to dismiss the appeal.
8. It is the case of the claimant that she sustained injuries in a road traffic accident which occurred on 15.12.2009 on account of the rash and negligent driving by the driver of auto bearing registration No.KA-03-A-9212. Actionable negligence on the part of the driver of the offending vehicle and the fact that the said vehicle was insured with the 1st respondent is not in dispute. It is also not disputed that there was a valid insurance policy for the said vehicle.
9. According to the appellant, she was working as a vegetable vendor and earning a sum of Rs.6,000/- per month. However, apart from the oral evidence, there is no satisfactory evidence which has been adduced to prove the income of the appellant. The Tribunal has taken the income at Rs.5,000/- per month, which cannot be said to be on the lower side.
10. According to PW3-doctor, the appellant was having visual disability to an extent of 40%. He has stated that the vision lost in left eye is profound and permanent due to corneal opacities, left esotropia and amblyopia and vision in right is decreased due to opacities and her visual disability is estimated at 40%. The doctor has stated that the left eye vision is poor. Evidence on record goes to show that the appellant has a decreased vision in her left eye. Considering the same, total disability which is taken at 25% by the Tribunal is justified and therefore the total compensation of Rs.2,40,000/- awarded towards ‘loss of future earning due to disability’ is just and reasonable.
11. The Tribunal has awarded compensation for loss of amenities and happiness, medical and incidental charges, loss of earning during the period of treatment which are just and reasonable and therefore the total compensation awarded is based on the evidence and material on record and does not require any enhancement.
12. The Tribunal has observed that the Respondent No.2-owner has not produced vehicle documents such as registration certificate, Fitness certificate and permit of the vehicle and also driving license of the driver of the offending vehicle. An adverse inference has been taken and it is held that the Respondent No.2-owner of the offending vehicle alone is liable to pay the compensation.
13. The Hon’ble Apex Court in the case of Raj Rani and others V/s. National Insurance Company and others reported in 2018 SCC 492 has held that in a case where there was no valid permit to operate the vehicle, even in such a case, the compensation determined by the High Court shall be first paid by the Insurance Company with liberty to recover the same from the owner of the offending vehicle.
14. In the case of Pappu and others and Vinod Kumar reported in AIR 2018 SC 592, it is held that the Insurance Company can be fastened with liability on the basis of the valid insurance policy.
15. In view of the aforesaid decisions of the Hon’ble Apex Court, the order passed by the Tribunal directing respondent No.2-owner of the offending vehicle to pay the compensation is hereby set aside.
16. Accordingly, I pass the following:
ORDER The appeal is allowed in part.
The judgment and award passed by the Tribunal thereby awarding Rs.3,67,000/- with interest at 6% per annum is confirmed.
Respondents No.1 and 2 are jointly and severally liable to pay the compensation and the compensation awarded shall be paid by the Insurer at the 1st instance with liberty to recover the same from the owner of the vehicle.
snc Sd/- JUDGE