IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT M.F.A.NO.3620 OF 2015 (MV) BETWEEN:
SHRI. M. NARAYANA S/O LATE GARUDAIAH AGED ABOUT 69 YEARS R/AT NO.3785, I FLOOR, 8TH CROSS, B BLOCK, RAJAJINAGAR, BANGALORE-560021. ... APPELLANT (BY SRI. SHRIPAD.V.SHASTRI, ADVOCATE) AND:
1. BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD., NO.105/A, CEARPLAZA, GROUND FLOOR, RESIDENCY ROAD, OPP: BANGALORE CLUB, BANGALORE-560025.
BY ITS MANAGER.
2. SHRI. SRINIVAS, MAJOR S/O PULAIAH, HASTINAPURAM-L.B.NAGAR, R.R.DISTRICT, HYDERABAD, ANDHRA PRADESH-460001.
... RESPONDENTS (SMT. H.R. RENUKA, ADVOCATE FOR R1 R2 – NOTICE HELD SUFFICIENT V/O DATED 28/11/2017) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 03.9.2014 PASSED IN MVC NO.7423/2010 ON THE FILE OF THE 12TH ADDITIONAL SMALL CAUSES JUDGE, MEMBER, MACT, BENGALURU, 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 The claimant is in appeal under Section 173(1) of the Motor Vehicles Act, not being satisfied with the quantum of compensation awarded and being aggrieved by saddling of liability on respondent No.2-owner under the judgment and award dated 03/09/2014 in M.V.C.No.7423/2010 on the file of the XII Additional Small Causes Judge and Member, MACT, Bangalore.
2. The claim petition was filed under Section 166 of the Motor Vehicles Act, claiming compensation for the accidental injuries suffered by him in a road traffic accident. It is stated that on 12-8-2008, when the claimant was proceeding in a lorry bearing Reg.No.AP-29-
TA-1360 as an occupant, the driver of the said lorry drove the same in a rash and negligent manner and hit the stationed lorry bearing No.AP-04-T-5026. As a result, the claimant fell down and sustained grievous injuries. Immediately, he was shifted to Government Hospital, Thirupathi. It is stated that the claimant was working as delivery man at Venleck System and was earning a sum of Rs.7,000/- per month. He was aged about 64 years as on the date of accident.
3. On issuance of notice, respondent No.1-Insurer appeared before the Tribunal and filed its written statement denying the claim petition averments. Further stated that as on the date of accident, the driver of the offending lorry was not holding a valid and effective driving license to drive the lorry bearing Reg.No.AP-29-TA-1360. It is also contended that the claimant was travelling in the said lorry as an unauthorized occupant. Thus, prayed to dismiss the claim petition.
4. The claimant examined himself as PW-1 and examined four witnesses as PWs-2 to 4, apart from marking Exs.P-1 to P-16. On behalf of the respondent- insurer, RWs-1 & 2 were examined and five documents Exs.R-1 to R-5 were marked.
5. The Tribunal, based on the material placed before it, awarded total compensation of Rs.1,79,845/- with interest
Further, the Tribunal saddled the liability on respondent No.2-owner on the ground that the driver of the offending lorry was not holding a valid and effective driving license as on the date of accident. The claimant not being satisfied with the quantum of compensation awarded and being aggrieved by saddling of liability on respondent No.2-owner is before this Court in this appeal.
6. Heard the learned counsel for the appellant and learned counsel for respondent No.1-insurer. Perused the material placed on record.
7. On hearing the learned counsels for the parties and on perusal of the material placed on record, the following points falls for consideration in the facts and circumstances of the case.
1) Whether the Tribunal is justified in saddling the liability on respondent No.2-owner?
2) Whether the claimant would be entitled for enhanced compensation?
Answer to the above points are in the affirmative for the following reasons.
8. The accident occurred on 12-8-2008 and the accidental injuries suffered by the claimant involving lorry bearing Reg.No.AP-29-TA-1360, lorry bearing No.AP-04-T- 5026 are not in disputed in this appeal. The claimant’s appeal is for enhancement of compensation as well as aggrieved by saddling of liability on respondent No.2- owner. The respondent-insurer specifically contended that the driver of the offending lorry was not holding a valid and effective driving license as on the date of accident. Ex.R2-particulars of the driving license and Ex.R4-driving license would indicate that the driver of the offending lorry had license to drive the light motor vehicle (LMV) but as on the date of accident, he was driving mini lorry which is categorized as MMV. He had no driving license to drive the category of the vehicle which he was driving as on the date of accident. Thus, the Tribunal rightly held that the driver of the offending lorry was not holding a driving license to drive the vehicle which he was driving as on the date of accident. In such type of cases, the Hon’ble Apex Court in the case of PAPPU AND OTHERS vs. VINOD KUMAR LAMBA AND ANOTHER reported in (2018) 3 SCC 208, has held that the insurer is liable to pay compensation at the first instance with liberty to recover the same from the owner of the vehicle. Thus, in the instant case also the insurer would be liable to pay the compensation at the first instance with liberty to recover the same from respondent No.2-owner of the lorry/vehicle.
9. Ex.P-5-wound certificate issued by the Government Hospital, Thirupathi, indicates the injury suffered by the claimant. PW-3-Doctor, who was examined on the behalf the claimant, states that the claimant suffered fracture posterior dislocation of left hip joint. Operation of closed reduction of left hip done on 13-8-2008 and the claimant suffers whole body disability at 15%. The Tribunal assessed the whole body disability at 6% based on the evidence of PW-3-Doctor. PW-3- Doctor in his cross-examination had admitted that the claimant is not facing any problem while walking, he can walk normally. Therefore, the assessment made by the Tribunal towards disability at 6% to the whole body needs no interference. Looking to the injury suffered and treatment taken by the claimant as inpatient for seven days, the compensation awarded on the head of ‘Loss of amenities, Conveyance, Food & Nourishment and Attendant charges’ are on the lower side. Further, the claimant would be entitled for compensation separately on the head of ‘Loss of amenities’. Further looking to the injury suffered and treatment taken by the claimant, he would have been out of employment for minimum three months, for which he would be entitled for compensation on the head of ‘Loss of income during laid up period’. Thus, the claimant-appellant would be entitled for modified
10. Thus, the claimant would be entitled for enhanced modified compensation of Rs.2,09,845/- as against Rs.1,79,845/- with interest at the rate of 6% per annum from the date of petition till its realization as awarded by the Tribunal.
The judgment and award passed by the Tribunal is modified to the above extent. Accordingly, appeal is allowed in part.
Respondent No.1-insurer is directed to pay the enhanced compensation amount within a period of eight weeks with liberty to recover the same from respondent No.2-owner of the lorry.
Sd/- JUDGE SMJ