IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF DECEMBER, 2017 BEFORE THE HON'BLE MR. JUSTICE B.SREENIVASE GOWDA MISCELLANEOUS FIRST APPEAL NO. 1225 OF 2013 (MV) BETWEEN:
MOHAMMAD AZAGAR S/O MOHAMMAD DASTHAGIR SAB AGED ABOUT 41 YEARS GREECE WORK TO THE LORRIES R/O INFRONT OF D P GARAGE BADAMACAN, CHITRADURGA-577501.
(BY SRI. R. SHASHIDHARA, ADV.) AND ... APPELLANT 1. M REVANNA S/O SHIKHARAPPA AGE: MAJOR, OWNER OF THE AUTO BEARING REGISTRATION NO. KA-16/A-5698 R/O ABEENAHALLY VILLAGE CHALLAKERE TALUK – 577 522 2. THE MANAGER SRIRAM GENERAL INSURANCE CO LTD RIICO INDUSTRIAL AREA SITAPURA, RAJASTHAN-332 715.
... RESPONDENTS (BY SRI. B.M. SIDDAPPA ADV., FOR R1., SRI. B. PRADEEP, ADV., FOR R2) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 14.09.2012 PASSED IN MVC NO.857/2010 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE, ADDITIONAL MACT VI, CHITRADURGA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENCHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal is filed by the claimant challenging the judgment and award passed by the Tribunal on the ground of liability as well as quantum of compensation.
2. With the consent of the learned counsels appearing for both the parties, the appeal is heard and disposed of finally. Perused the judgment and award passed by the Tribunal.
3. As there is no dispute regarding certain injuries sustained by the claimant in a road traffic accident occurred on 27.12.2009 due to rash and negligent driving of an autorikshaw bearing registration No. KA-16-A-5698 by its driver, the points arise for consideration in the appeal are: :
“1.Whether finding of the tribunal in respect of liability is sustainable in law?
2.Whether the quantum of compensation awarded by the Tribunal is just and reasonable or does it call for enhancement?”
4. Sri. R. Shashidhara, learned counsel for the claimant submits, in the very accident dated 27.12.2009 two persons namely, Mohammad Azagar (claimant in the instant appeal) and Papesha had sustained bodily injuries and they had filed two separate claim petitions before different tribunals. Mohammad Azagar claimant in this case filed claim petition in MVC No.857/2010 before II Additional Senior Civil Judge & Additional MACT-VI and Papesha filed claim petition in MVC. No. 439/2010, before Prl. Civil Judge (Sr. Dn) & Addl. MACT, Chitradurga. The claim petition in MVC No. 439/2010 filed by Papesha was allowed by Prl. Civil Judge (Sr. Dn) & Addl. MACT, Chitradurga and the liability was fastened on the insurer of the offending vehicle. The insurer has not challenged the award made in MVC. NO.439/10 and in fact they have satisfied the award. Therefore, he prays for allowing the appeal and modifying the finding of the Tribunal on liability by fastening the liability on the insurer as has been done in MVC No.439/2010.
5. The learned counsel for the appellant submits, the compensation awarded by the Tribunal is not just and reasonable, it is on the lower side and he prays for enhancing the compensation awarded by the Tribunal.
6. Sri. B. Pradeep, the learned counsel for the insurer of the offending vehicle submits, the insurer could not challenge the award made in MVC. No.439/2010 for two reasons. Firstly on the ground that they did not lead evidence as to permit and secondly on the ground that the amount of compensation awarded in the said case is a meager sum of Rs.2,500/-. However, he does not dispute the submission made by the learned counsel for the claimant that the insurer has not preferred any appeal challenging the award made in MVC No, 439/2010 either on liability or on any other ground and on the other hand they have satisfied the award. Regarding quantum of compensation, he submits, the compensation which is already awarded by the Tribunal is just and reasonable, there is no scope for enhancement and he prays for dismissal of the appeal.
7. It is not in dispute that in the very accident dated 27.12.2009, occurred due to rash and negligent driving of an autorikshaw bearing reg. No.KA-16-A- 5698, the appellant and another person by name Papesha, had sustained injuries. It is also not in dispute that the claim petition filed in MVC.No.439/2010 by Papesha was allowed by the Prl. Civil Judge (Sr. Dn) & Addl. MACT, Chitradurga holding that the owner and the insurer of the offending auto rickshaw are liable to pay the compensation awarded jointly and severally and directing the insurer of the offending autorickshaw to deposit the compensation amount. The Insurer of the offending autorickshaw has not preferred any appeal, challenging the said judgment and award passed in MVC.No.439/2010 either on the ground of liability or any other ground. On the other hand they have satisfied the award made in the said claim petition, if that is so, they are estopped from resisting the finding of the Tribunal on liability. Even otherwise plying of an autorickshaw beyond the area prescribed in the permit cannot be a valid ground on which the insurer can absolve from its liability, as has been held by this Court and Hon’ble Supreme Court in such and similar cases. Hence, the finding of the tribunal on liability is not sustainable in law and it is modified by holding that both the owner and insurer of the offending vehicle are jointly and severally liable to pay the compensation awarded and the insurer is liable to deposit the same. Hence, point No.1 is answered accordingly.
Regarding quantum of compensation:-
8. As per EX.P5-wound certificate, the claimant had sustained the following injuries:-
a. Fracture of right humerus, b. Abrasion 8X8 cm over dorsum of right hand, c. Abrasion 5X5 cm over dorsum of left hand, d. Fracture of lower end of left leg bone, e. Tenderness over left lower chest.
The injuries sustained and treatment underwent by the claimant, are also evident from Ex.P8-disability certificate, Ex.P9- the referral card, Ex.P10 and Ex.P11 the x-ray films, Ex.P12 and Ex.P13 are photos and they are corroborated by the oral evidence of the claimant and the Doctor who were examined as PW.1 and PW2 respectively. PW2 Doctor has stated in his evidence that, the claimant has suffered disability of 28% with respect to his right upper limb and 31 % with respect to left lower limb. Considering the nature of injuries sustained by the claimant a sum of Rs.45,000/- is awarded towards pain and suffering as against Rs.20,000/- awarded by the Tribunal. As Rs.5,000/- awarded by the Tribunal towards Medical expenses is as per Medical Bills produced by the claimant, it is just and proper and there is no scope for enhancement under this head. Claimant was treated as inpatient for 16 days from 27.12.2009 to 12.01.2010. Considering the duration of treatment a sum of Rs.8,000/- is awarded towards incidental expenses. The claimant is stated to have been earning Rs.10,000/- p.m. by doing grease work, but has not substantiated the same by producing any document. In the absence of proof of income, considering his age as 40 years, year of accident as 2009 and avocation as daily wager, his income is assessed at Rs.5,000/- per month. Nature of injuries sustained by him would suggest that he must have been under rest and treatment for a period of three months. Therefore, a sum of Rs.15,000/- is awarded towards loss of income during laid up period. His income is now assessed at Rs.5,000/- per month. Multiplier applicable to his age group is 15. As per the disability, stated by the doctor at 28% to the right upper limb and 31% to left lower limb, the disability caused to the whole body comes around 12.3%. Therefore, the Tribunal was justified in taking the total disability at 15%, If so, loss of future income would workout to Rs.1,35,000/- (5000 X 12 X 15 X 15/100) and it is awarded as against Rs.81,000/- awarded by the Tribunal. Considering disability stated by the doctor and an amount of discomfort claimant has to undergo in his future life, a sum of Rs.20,000/- is awarded towards loss of amenities.
9. Thus, the compensation awarded by the Tribunal is re-assessed as under:
10. Accordingly, appeal is allowed in part. The judgment and award passed by the Tribunal is modified to the extent stated hereinabove. The appellant is awarded an additional compensation of Rs. 1,12,000/- with interest at 6% p.a. from the date of claim petition till the date of realization. Both the owner and the insurer of the offending vehicle are liable to pay the compensation awarded by the Tribunal as well as the additional compensation awarded by this Court jointly and severally. Further, the insurer of the offending vehicle is directed to deposit the compensation awarded by the Tribunal as well as the additional compensation awarded by this Court with interest at 6% p.a. from the date of claim petition till the date of realization. Out of which, 70% with proportionate interest is ordered to be invested in fixed deposit in the name of claimant in any Nationalised Bank for a period of 3 years and the claimant is at liberty to withdraw interest periodically and the remaining 30% with proportionate interest shall be released in favour of the claimant immediately after deposit.
11. The Tribunal while releasing 30% of the amount is also directed to issue the fixed deposit slips, so as to enable the claimant to withdraw the deposit amount on its maturity without approaching the Tribunal once again and the Bank is also directed to release the fixed deposit amount on its maturity without insisting for any further order from the Tribunal.
No order as to cost.
Sd/- JUDGE AKV