IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MRS JUSTICE K.S.MUDAGAL MISCELLANEOUS FIRST APPEAL NO.4474/2012 (MV) C/W MISCELLANEOUS FIRST APPEAL NO.2595/2012 (MV) IN MFA NO.4474/2012:
BETWEEN:
MR. M.R.HULINAYKAR AGED ABOUT 60 YEARS PROP. M/S SHRIDEVI HOSPITAL 1ST CROSS, K.R.EXTENSION TUMKUR … APPELLANT (BY SRI N.S.BHAT, ADVOCATE) AND:
1. THE MANAGER BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LTD., GROUND FLOOR, NO.31 TBR TOWER, 1ST CROSS NEW MISSION ROAD NEXT TO JAIN COLLEGE AND BENGALURU STOCK EXCHANGE, J.C.ROAD BENGALURU – 560 002 2. SHIVANNA S/O GANGAIAH AGED ABOUT 53 YEARS R/AT SATYAMANGALA KASABA HOBLI, TUMKUR TALUK TUMKUR DISTRICT … RESPONDENTS (BY SRI H.S.LINGARAJ, ADVOCATE FOR R1;
SRI PATEL D. KAREGOWDA, ADVOCATE FOR R2) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 29.12.2011 PASSED BY THE PRINCIPAL DISTRICT JUDGE AND MEMBER, MACT, TUMKUR IN MVC NO.1702/2009 AWARDING COMPENSATION OF RS.2,56,400/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT.
IN MFA NO.2595/2012:
BETWEEN:
SHIVANNA AGED ABOUT 56 YEARS S/O GANGAIAH R/AT SATHYAMANGALA KASABA HOBLI TUMKUR TALUK AND DISTRICT …APPELLANT (BY SRI PATEL D. KAREGOWDA, ADVOCATE) AND:
1. DR.M.R.HULINAYKAR AGED ABOUT 63 YEARS PROP:M/S. SHRIDEVI HOSPITAL I CROSS K.R.EXTENSION, TUMKUR – 572 101 2. BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LTD., GROUND FLOOR, NO.31 TBR TOWER, I CROSS NEW MISSION ROAD NEXT TO JAIN COLLEGE AND BENGALURU STOCK EXCHANGE, J.C.ROAD BENGALURU – 560 002 BY ITS MANAGER …RESPONDENTS (BY SRI N.S.BHAT, ADVOCATE FOR R1;
SRI H.S.LINGARAJ, ADVOCATE FOR R2) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO MODIY THE JUDGMENT AND AWARD DATED 29.12.2011 PASSED BY THE PRINCIPAL DISTRICT JUDGE AND MEMBER, MACT, TUMKUR IN MVC NO.1702/2009 AWARDING COMPENSATION OF RS.2,56,400/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT.
THESE MFAs COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T MFA No.4474/2012 is filed by owner of the offending vehicle MFA No.2595/2012 is filed by claimant challenging the judgment and award dated 29.12.2011 in MVC No. 1702/2009 passed by the Principal District Judge and MACT, Tumkur. By the impugned award, the Tribunal has granted compensation of Rs.2,56,400/- payable by owner of the offending vehicle. In the claim petition owner of vehicle was respondent 1 and Insurer of vehicle was respondent No.2.
2. Parties will be referred to henceforth with their ranks before the Tribunal.
3. Claimant filed MVC No.1702/2009 before the Principal District Judge, MACT, Tumkur claiming compensation of Rs.7,50,000/- from respondent Nos.1 and 2 due to the injuries suffered by him in the accident caused by Maruti Omni Ambulance bearing No.KA-06-B-7167. On 17.11.2009 at about 6.30 p.m.
when the claimant was traveling in that ambulance near Manganahalli Bridge on Hosur Tumkur nice road, the vehicle hit the road side stone wall causing the accident.
4. In the accident, claimant sustained the following injuries:
(i) Type-I open comminuted fracture both bones right forearm (distal 3rd);
(ii) Wedge compression of fracture of L-1 vertebra without neurological deficites;
(iii) Fracture left clavicle (junction of medical 1/3 and later 2/3rd);
(iv) Fracture of 4/5th metatarsals right foot.
5. Claimant filed claim petition contending that accident occurred due to rash and negligent driving of the driver of the vehicle employed by respondent No.1. He claimed that in the accident, he suffered permanent physical disability. Respondent Nos.1 and 2 contested the petition. Respondent No.1 contended that offending vehicle is insured with respondent No.2 and therefore respondent No.2 is liable to compensate the damages.
6. Respondent No.2 denied the accident, age, occupation and income of the claimant, injuries said to have been suffered by the claimant in the accident, disability, medical expenses etc.
7. In support of claim petition, claimant got examined himself as PW.1 and PW.2 the doctor who treated him. Exs.P1 to P16 were got marked. Officer of the Insurance Company was examined as RW.1. Respondent No.1 was examined as RW.2. On behalf of respondents, Exs.R1 to R3 were got marked.
8. The Tribunal, after hearing both sides, by impugned judgment and award held that the accident occurred due to rash and negligent driving of the vehicle by driver employed by respondent No.1. The Tribunal held that in the accident, claimant suffered 25% of permanent disability and assessed the income at
9. The Tribunal held that driver of the offending vehicle was holding LMV/Non Transport licence whereas the vehicle involved in the accident was transport vehicle, therefore there was breach of policy condition and insurer is absolved of its liability and it is only the owner who is liable to pay compensation to the claimant. Therefore, the Tribunal fastened the liability on owner of the vehicle only.
10. Owner challenged the award on the ground that licence held by driver covered transport vehicle also therefore, insurer is liable to pay compensation. In support of his contention, he seeks to rely on the judgment of the Supreme Court in Mukund Dewangan v. Oriental Insurance Company Limited [AIR 2017 SC 3668].
11. Learned Counsel for the claimant seeks to assail the impugned judgment and award on the ground that income assessed by the Tribunal is on lower side, award on the heads of loss of future income, loss of income during laid up period is on lower side. He further submits that compensation award on attendant charges, food, nourishment during laid up period is also on lower side.
12. Sri H.S.Lingaraj, learned Counsel for insurer seeks to sustain impugned judgment award and submits that the award is just and proper. He submits admittedly, the driver of the vehicle was holding licence only to drive light motor vehicle/non transport and he was not holding valid driving licence.
13. Since owner and insurer did not challenge the findings on the occurrence of accident, age, occupation and injuries suffered by victim, those findings of the Tribunal have attained finality.
14. Therefore, the only question for consideration is:
“Whether the Tribunal was justified in fastening the liability on the owner and whether the compensation awarded is just and reasonable”?
Regarding Liability:
15. There is no dispute with regard to occurrence of accident and the driver of the vehicle was holding licence to drive light motor/non transport vehicle. The Hon’ble Supreme Court in Mukund Dewangan’s case has held that Driving Licences are issued to a class of vehicle and not category. Therefore it was held the licence issued to drive light motor vehicle non transport also covers the same class transport vehicle. Therefore, the finding of the Tribunal that driver was not holding valid driving license and there was breach of policy condition and insurer is absolved of his liability is erroneous.
Regarding Quantum:
16. At the time of accident, the victim was aged about 53 years. There was no proof of his actual income.
Accident occurred in November 2009. He said to have been working as bill collector. Therefore, his monthly income taken at Rs.3,000/- per month is on the lower side and just assessment would be at Rs.5,000/- per month.
17. The victim has suffered fracture of right fore arm, abrasion over right forehead, compression fracture of L.1 vertebra, fracture of left clavicle, fracture of 4th and 5th meta tarsal bones. Doctor-PW.2 assessed disability at 32% to 35% to the whole body.
18. Having regard to the nature of injuries and fracture caused, the Tribunal is justified in assessing the disability at 25% to the whole body. Having regard to the age of the claimant, the Tribunal has correctly applied 11 multiplier. Having regard to the period of hospitalization, compensation of Rs.1,35,000/- on the head of pain and sufferings is justified. Medical expenses award was commensurate to the proof provided for that.
19. The victim was hospitalised for 15 days.
Therefore, attendant charges of Rs.1,500/- awarded is on the lower side. It is just and proper to award a sum of Rs.10,000/- under the head nourishment, attendant charges during hospitalization. Loss of income during laid up period assessed by the Tribunal is on lower side. That has to be in commensurate with the income of the claimant assessed as Rs.5,000/- per month. The just compensation payable to the claimant is as follows:
20. The Tribunal has awarded Rs.2,56,400/-.
Therefore, compensation awarded by the Tribunal is modified by granting total compensation of Rs.3,44,352/- rounded of to Rs.3,44,500/- payable by the insurer with interest at 6% per annum from the date of petition till date of deposit of the aforesaid compensation.
21. Under these circumstances, MFA No.4474/2012 filed by the owner of the vehicle is allowed. MFA No.2595/2012 filed by claimant is partly allowed. The impugned judgment and award dated 29.12.2011 is modified as follows:
The claimant is awarded Rs.3,44,500/- with interest thereon at the rate of 6% per annum from the date of petition till the date of deposit payable by the insurer. Compensation awarded shall be deposited within 60 days from the date of this order. Amount if any deposited by the appellant in MFA No.4474/2012 shall be refunded to him.
KSR Sd/- JUDGE