IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE S.G.PANDIT MISCELLANEOUS FIRST APPEAL No.2601/2015 [MV-INJ] BETWEEN:
1 . N SHIVARAJU S/O NAGARAJU AGED ABOUT 25 YEARS, R/O HOSABUDANUR VILLAGE, KASABA HOBLI, MANDYA TQ & DISTRICT-571 409.
...APPELLANT (BY SRI M.Y.SREENIVASAN, ADV.) AND 1 . RELIANCE GENERAL INSURANCE CO LTD., R/P BY BRANCH MANAGER, 1ST FLOOR, MYSORE TRADE CENTRE, OPP TO KSRTC BUS STAND, MYSORE-570 001.
2 . M.MARIYAPPA S/O H.MARIYAPPA, MAJOR, R/O NO.261/8, V.V.MOHALLA, CHAMARAJA MOHALLA, MYSORE-570 017.
….RESPONDENTS (BY SRI H S LINGARAJ, ADV. FOR R1 R2 IS SERVED) THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 14.08.2014 PASSED IN MVC NO.548/2009 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND MACT, MANDYA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T The claimant is in appeal under Section 173(1) of the Motor Vehicles Act not being satisfied with the quantum of the compensation awarded in MVC No.548/2009 dated 14.08.2014 on the file of the Principal Senior Civil Judge and MACT, Mandya.
2. The claimant filed the claim petition under Section 166 of the Motor Vehicles Act, seeking compensation Rs.6,50,000/- in MVC No.548/2009 for the accidental injuries suffered by him in a road traffic accident. It is stated that on 16.06.2009 at about 9.00 a.m., when the claimant along with his relative one Mr. Krishna who was riding the vehicle were proceeding in a motor vehicle bearing Reg.No.KA-11/L-3987, the driver of the TATA Indica car bearing Reg.No.KA-01/A- 7426 came in rash and negligent manner from behind and dashed to the motor cycle. As a result of which, the claimant and the rider of the motor cycle fell down and both sustained injuries. The claimant stated that he was aged about 19 years at the time of accident and he was earning a sum of Rs.8,000/- per month as a coolie.
3. On issuance of notice, all the respondents appeared before the Tribunal, but only respondent Nos.2 and 5 have filed the written statement. The respondent No.2- insurer stated that the TATA Indica car was not having a valid licence as on the date of the accident. Further it is stated that the claim of the petitioner is exorbitant and baseless. Thus, prayed to dismiss the claim petition.
4. The claimant examined himself as PW-2 and Doctor as PW-3 in support of his case, apart from marking documents from Exs.P-1 to P-11. Respondent No.2- Insurance Company examined one witness as R.W.1 and got marked three documents from Ex.R.1 to Ex.R.3.
5. The Tribunal on appreciating the material placed before it, awarded total compensation of Rs.41,600/- with interest at the rate of 6% per annum from the date of petition till payment, on the following heads:
SI.No. Heads Amount in (Rs.) 1. Injuries, Pain and sufferings 28,000
While awarding the above compensation, the Tribunal assessed the notional income of the claimant at Rs.4,500/- per month. The claimant not being satisfied with the compensation awarded by the Tribunal is before this Court in this appeal praying for enhancement of compensation.
6. Heard the learned counsel for the appellant- claimant and the learned counsel for respondent No.1- Insurer. Perused the appeal papers.
7. Learned counsel for the appellant-claimant would submit that the Tribunal committed an error in saddling the liability on respondent No.3- owner of the offending car, instead of saddling the liability on the respondent No.2- Insurer of the offending vehicle. It is his submission that the driver of the TATA Indica car had licence to drive light motor vehicles LMV (NT). In view of the decision of the Hon’ble Supreme Court in the case of Mukund Dewangan Vs. Oriental Insurance Company Limited reported in (2017) 14 SCC 663, the liability is to be shifted on the respondent No.2-Insurer. The learned counsel further submits that the income assessed by the Tribunal is on the lower side. Learned counsel submits that the claimant was earning morethan Rs.8,000/- per month by doing coolie work. The Tribunal without considering the evidence, has assessed the income of the claimant as Rs.4,500/- which is on the lower side. Learned counsel further submits that the Tribunal erred in not assessing the whole body disability and loss of future income. It is his submission that P.W.3- doctor assessed the permanent disability of the claimant at 27% to the left lower limb and the Tribunal ought to have assessed the whole body disability at 9%, if 1/3rd of the said disability is taken as disability to the whole body. Thus, he prays for allowing the appeal and to award compensation under the head of ‘Loss of future income due to disability’. It is his further submission that the Tribunal failed to award any compensation under the head of ‘loss of amenities’. Learned counsel further submits that looking to the nature of the injuries sustained and the treatment taken, the claimant would be entitled for the enhanced compensation on the heads of ‘loss of earnings during laid up period and towards nourishment and conveyance allowances which is on the lower side. Thus, he prays for enhancement of compensation on the above said heads.
8. Per contra, learned counsel for respondent No.2– Insurer submits that the driver of the offending vehicle TATA Indica car had not valid licence to drive LMV (TR) vehicle as on the date of the accident, which is evident from Ex.R.2- Driving licence. Hence, he submits that the Tribunal has rightly saddle the liability on the respondent No.3- owner of the offending vehicle. Further the quantum of the compensation awarded by the Tribunal is just and proper which needs no interference. It is submitted that the claimant has failed to produce any disability certificate. The doctor who has treated the claimant has also not issued any disability certificate. The wound certificate-Ex.P.5 would also not disclose any fracture. Thus, he prays for dismissal of the appeal.
9. Having heard the learned counsel for the parties and on perusal of the appeal papers, the following questions would arise for consideration in the facts and circumstances of the present case;
1. Whether the Tribunal is justified in saddling the liability on the respondent No.3-owner of the offending vehicle?
2. Whether the claimant is entitled for enhancement of compensation in the facts and circumstances of the present case?
Answer to the above said questions would be in the ‘negative’ and in the ‘affirmative’ respectively for the following reasons;
The accident occurred on 16.06.2009 involving Motor Cycle bearing Reg.No.KA-11/L-3987 and TATA Indica car bearing Reg.No.KA-01/A-7426 and the accidental injuries suffered by the claimant are not in dispute in this appeal. The claimant filed the present appeal for enhancement of compensation and to saddle the liability on the respondent No.2- Insurer. Learned counsel for the appellant submits that the Tribunal committed an error in saddling the liability on the respondent No.3 who is the owner of the offending vehicle. It is his submission that the driver of the offending vehicle TATA Indica car had valid and effective driving licence which is Ex.P.2 which would establish that the driver of the offending vehicle was possessing licence to drive Light Motor Vehicle (LMV-NT). The Hon’ble Supreme Court in the case stated supra has held that the driver possessing driving licence to drive light motor vehicle (NT) could also drive transport vehicle of light motor vehicle category. In the said circumstances, as the driver of the TATA Indica car posses LMV (NT) could also driver of LMV (TR) of the same category. Hence, the respondent Nos.2 and 3 are jointly liable to pay the compensation. Accordingly, the respondent No.2-insurer to indemnify the respondent No.3 owner of the offending vehicle and to deposit the compensation awarded by the Tribunal within two weeks from the date of receipt of copy of the judgment.
10. The claimant states that he was working as a coolie and was earning morethan Rs.8,000/- per month. No material is placed to substantiate the same. In the absence of any material, the Tribunal assessed the notional income of the claimant as Rs.4,500/- per month. But the same is on the lower side. This Court and the Lok Adalath while determining the compensation in Motor Vehicles Accident cases would normally take the notional income for the accidents of the year 2011 at Rs.6,500/- per month. In this case also in the absence of any material to indicate the exact income of the claimant, I deem it appropriate to take Rs.5,000/- per month as notional income of the claimant for determination of the compensation. The claimant was inpatient for twelve days on two intervals and has undergone surgery. The injury suffered by the claimant according to the counsel is fracture of tibia and fibula. But Ex.P.5 the wound certificate would indicate the following injuries; deformity of pain over lower 1/3rd of left leg; lacerated wound on the left side of chest; abrasions over the right hand and other injuries all over the body, which would not indicate the fracture of tibia and fibula. But the learned counsel states that the doctor in his evidence has stated that the claimant sustained fracture of tibia and fibula. Further it is to be noticed that the fracture of tibia and fibula is not noted in the wound certificate. Further the doctor who treated him and who deposed before the Tribunal has also not issued any disability certificate, but, in his evidence, he has stated that claimant suffered fracture of tibia and fibula. In the absence of disability certificate by the doctor and in the absence of indication of fracture of tibia and fibula in Ex.P.5 wound certificate, I am of the view that the Tribunal has not erred in assessing the whole body disability. Looking to the injuries sustained and the treatment taken by the claimant as ‘in patient’ for twelve days, he would be entitled for a sum of Rs.15,000/- on the head of loss of earnings during laid up period. The Tribunal awarded Rs.3,000/- towards ‘nourishment and conveyance allowances’. Looking into Exs.P.6 & 7 the medical bills, the claimant would have spent more than what is awarded by the Tribunal. Hence, it is appropriate to award a sum of Rs.20,000/- towards ‘nourishment and conveyance allowances’.
The Tribunal also failed to award any compensation on the head of ‘loss of amenities’. Looking to the injuries sustained by the claimant, a sum of Rs.20,000/- is awarded on the head of ‘loss of amenities’. Thus, the claimant-appellant would be entitled for the modified enhanced compensation as follows:
SI.No. Heads Amount in (Rs.) 1. Towards Pain and sufferings 2. Towards Medical expenses 3. Towards loss of earnings during laid up period 4. Towards nourishment and conveyance allowances 28,000 10,000 15,000 20,000 5. Towards loss of amenities 20,000 Total 93,000 Thus, the claimant would be entitled for total compensation of a sum of Rs.93,000/- as against Rs.41,600/- awarded by the Tribunal with interest at the rate of 6% per annum from the date of petition till its realization.
The judgment and award passed by the Tribunal is modified to the above extent. Accordingly, appeal is allowed in part.
Sd/- JUDGE PN/-