IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 20TH DAY OF FEBRUARY, 2019 BEFORE:
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MISCELLANEOUS FIRST APPEAL No.2618 OF 2014 [MV] C/W MFA.CROB No.29 OF 2015 MFA No.2618/2014 BETWEEN M/s.Oriental Insurance Company Limited Divisional office S S Complex Subhash Square Hassan, rep. by its Divisional Manager. ... Appellant [By Sri A M Venkatesh, Advocate] AND 1. Aslam Pasha, s/o Baba Sab Aged about 48 years r/a Near Chingidivan Darga, Pension Mohalla Hassan City.
2. Vijaya Kumar s/o Parameshwar Major, r/o Shankaripuram Hassan, (owner of autorickshaw bearing No.KA-13/8020). ... Respondents [By Smt.A R Sharadamba, Advocate for R1, R2 - served) This MFA is filed under Section 173(1) of MV Act against the judgment and award dated 13.12.2013 passed in MVC No.53/2011 on the file of the Principal Senior Civil Judge, Member, Additional MACT, Hassan, awarding a compensation of Rs.62,000/- with interest at 6% p.a. from the date of petition till realization.
MFA.CROB No.29/2015:
BETWEEN:
Aslam Pasha s/o Baba Sab 48 years, r/o.Near Chingidivan Darga, Pension Mohalla Hassan City – 573201. ..Cross-objector (By Smt.A R Sharadamba, Advocate) AND:
1. Vijaya Kumar s/o Parameshwar Major, r/o Shankaripuram Hassan – 573201.
2. M/s.Oriental Insurance Company Limited Division Office S S Complex Subhash Square Hassan City – 573201. .. Respondents (By Sri A M Venkatesh, Advocate for R2, R1- service of notice held sufficient v/c/o dtd:13.2.2019) This MFA.CROB in MFA No.2618/2014 is filed under Order 41 Rule 22 of CPC, against the judgment and award dated 13.12.2013 passed in MVC No.53/2011 on the file of the Principal Senior Civil Judge, Member, Additional MACT, Hassan partly allowing the claim petition for compensation and seeking enhancement of compensation.
MFA and MFA.CROB coming on for final disposal this day, the Court delivered the following:
JUDGMENT MFA No.2618/2014 is preferred by the Insurance Company challenging the quantum of compensation awarded in MVC No.53/2011 by the Principal Senior Civil Judge, Member, Additional MACT, Hassan dated 13.12.2013 and MFA.CROB No.29/2015 is filed by the injured/claimant seeking enhancement of compensation awarded therein.
2. It is the case of the claimant that on 2.7.2010 at 10.15 p.m, near the compound of PWD Office, B M Road, N R Circle, Hassan, when he was standing on the left side of the road, at that time, an autorickshaw bearing Regn. No.KA-13-8020 driven by its driver came from D C office side in a rash and negligent manner and dashed against him, as a result of which, he sustained multiple injuries and admitted in Government Hospital, Hassan. According to him, he suffered fracture of right humerous and also sustained other injuries and took treatment as an inpatient.
3. The Tribunal considering the evidence and material on record awarded a total compensation of Rs.62,500/- with interest at 6% p.a.
4. Assailing the impugned judgment and award passed by the Tribunal, learned counsel for the appellant in MFA No.2618/2014 contended that the driver of the offending vehicle in question was not holding a valid and effective driving license to drive a transport vehicle and whereas the offending vehicle is a transport vehicle. Hence, he submits that the Tribunal was not proper in fastening the liability on the Insurance Company. Accordingly, he seeks to allow the appeal filed by the Insurance Company.
5. Learned counsel appearing for the claimant in MFA.CROB No.29/2015 submits that the total compensation awarded by the Tribunal is on the lower side since the injured/claimant has sustained fracture as well as other injuries. Learned counsel further submits that in view of the latest decision of the Hon’ble Apex Court in the case of Mukund Dewangan –vs- Oriental Insurance Co. Ltd. reported in 2017 ACJ 2011, the Insurance Company is liable to pay the compensation. Therefore she seeks to dismiss the appeal filed by the Insurance Company and enhance the compensation by modifying the judgment and award passed by the Tribunal.
6. The accident in question and the fact that the vehicle involved was insured with the appellant/Insurance Company in MFA No.2618/2014 is not seriously disputed. However, it is the contention of the learned counsel for the Insurance Company that the driver of the offending vehicle was not holding a driving license to drive a transport vehicle and there is no endorsement to that effect.
7. It is not disputed that the driver of the autorickshaw was having a valid and effective driving license to drive LMV (NT). Therefore, in view of the decision of the Hon’ble Apex Court in Mukund Dewangan’s case noted supra, the Insurance Company is liable to pay the compensation and therefore, the Tribunal, fastening the liability on the insurer of the vehicle is justified.
7. The Tribunal has awarded a total compensation of Rs.62,500/- under the following heads:
1. Compensation towards pain and sufferings - Rs.20,000/-
2. Compensation towards medical expenses - Rs. 5,000/-
3. Special diet, nursing, extra nourishment and conveyance charges. - Rs.10,000/-
4. Attendant charges - Rs. 3,000/-
5. Compensation towards loss of earning during treatment period - Rs. 4,500/-
6. Compensation towards loss of future earning and amenities - Rs.20,000/-
Total Rs.62,500/-
8. According to the wound certificate at Ex.P7, the injured had sustained fracture of right humerous and other injuries. The doctor has not been examined, however, considering the wound certificate – Ex.P7 and medical expenses incurred and also considering the fact that the appellant might have lost some earning during the treatment period etc., I am of the view that the appellant is entitled to a global compensation of Rs.25,000/- in addition to what has been awarded by the Tribunal with interest at 6% p.a. Accordingly, I pass the following:
ORDER *MFA No.2618/2014 filed by the Insurance Company is dismissed.
*MFA.CROB No.29/2015 filed by the claimant/cross – objector is allowed in part.
The judgment and award dated 13.12.2013 passed in MVC No.53/2011 on the file of the Principal Senior Civil Judge, Member, Additional MACT, Hassan is hereby modified.
Claimant in *MFA.CROB No.29/2015 is entitled for a global compensation of Rs.25,000/- in addition to what has been awarded by the Tribunal with interest at the rate of 6% p.a. from the date of petition till realization.
*Corrected vide court order dated 20.09.2019 The amount in deposit made by the Insurance Company shall be transmitted to the Tribunal concerned.
Sd/- JUDGE Bkm