IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF MAY, 2019 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR MFA NO. 6452 OF 2015 (MV) CONNECTED WITH MFA NO. 4138 OF 2015 (MV) MFA NO.6452 OF 2015: BETWEEN R. Ravi S/o Late Ramachandran Aged 23 Years C/o Ananda, Dodda Thogur Near Narasimha Temple Electronic City Bengaluru-560 100.
Permanent Address No.136A, Nadu Street Muthanoor, Chengam Taluk Thiruvannamalai.
... Appellant (By Sri. K. V. Shyamaprasada, Adv.) And 1. M/s Reliance General Insurance Co. Ltd. 5th Floor, West Entrance, 'Khanija Bhavan, Race Course Road Bengaluru-560 001 Represented by its Manager.
2. M/s. Angel Cabs No.39/1, 7th Main H A L 2nd Stage E S I Hospital Road Indiranagar Bengaluru-560 001 Represented by its Manager.
... Respondents (By Sri. Ashok N. Patil, Adv. For Respondent No.1; Respondent No.2 Served) This MFA is filed under Section 173(1) of MV Act against the judgment and award dated 12.03.2015 passed in MVC No.6509/2013 on the file of the Judge, Court Of Small Causes and XXVI ACMM, MACT, Bengaluru, partly allowing the claim petition for compensation and seeking enhancement of compensation.
MFA NO.4138 OF 2015 : BETWEEN Reliance General Insurance Company Limited, 5th Floor West Entrance, Khanija Bhavan Race Course Road Bengaluru-560 001 Now at M/s. Reliance General Ins. Co. Ltd. 5th Floor, Centenary Building M.G. Road, Bengaluru-560 001 Now represented by Manager Legal.
... Appellant (By Sri. Ashok N. Patil, Advocate) AND 1. Mr. R. Ravi S/o Late Ramachandra Age 23 Years C/o Ananda, Dodda Thogur Near Narasimha Temple Electronic City Bengaluru-560 100.
Permanent Address: No.136A, Nadu Street Muthanoor, Chengam Taluk Thiruvannamalai.
2. M/s. Angel Cabs R/at No.39/1, 7th Main HAL 2nd Stage ESI Hospital Road Indiranagar Bengaluru-560 038.
... Respondents (By Sri. K. V. Shyamaprasada, Adv for Respondent No.1; Respondent No. 2 - Served) This MFA is filed under section 173(1) of MV Act against the judgment and award dated 12.3.2015 passed in MVC No.6509/2013 on the file of the Judge, Court Of Small Causes, 26th ACMM, (SCCH-09), Bengaluru, awarding a compensation of Rs.4,43,000/-
with interest @ 6% p.a from the date of petition till its realization.
These MFAs coming on for admission, this day, the court delivered the following:
JUDGMENT Though these matters are listed for admission, with the consent of the learned counsel for both the parties, the same are heard for final disposal. Further, since both the appeals arise out of a common judgment, they are heard together and are disposed of by this common order.
2. Heard the learned counsel for the appellant in MFA No.6452/2015 – claimant and the learned counsel for the appellant in MFA No.4138/2015 – Insurance Company and perused the records.
3. The injured-claimant has preferred the appeal in MFA No.6452/2015, not being satisfied with the quantum of compensation awarded by the Tribunal by its impugned judgment dated 12.03.2015 in MVC No.6509/2013, and seeking enhancement of compensation. The connected appeal in MFA No.4138/2015 has been preferred by the Insurer being aggrieved by the very same order of the Tribunal fastening the liability on the Insurance Company to pay the compensation.
4. The factual matrix of the appeals is that on 26.09.2013 at about 10.30 p.m. when the claimant / appellant was proceeding in a motor bike bearing Reg.No.KA-51-H-2657, near Konapana Agrahara Junction, Hosur Road, Bangalore, a Tata Sumo bearing Reg.No.KA-03-AA-2908 came in a rash and negligent manner and at a high speed and dashed the bike of the appellant as a result of which he fell down and sustained grievous injuries including fractures. The claimant was then treated as an in-patient in hospital and incurred huge medical expenses. Hence, he filed a claim petition before the Tribunal seeking compensation.
5. On service of notice the Insurance Company – appellant in MFA 4138/2015 appeared through counsel and filed written statement whereas the owner of the offending vehicle failed to appear before the tribunal and was placed exparte. In its written statement, the Insurer admitted that the offending Tata Sumo vehicle was insured with them and the insurance policy was in force at the time of the accident. However he denied as regards the accident, manner in which the accident took place and rash and negligent driving of the tata sumo vehicle by its driver as the cause for the accident. The insurer also denied the injury sustained by the claimant, treatment taken for the injuries, disability sustained and medical expenses incurred by the appellant. Further it was contended that the driver of the Tata Sumo had no valid driving licence and there is violation of policy conditions by the owner of the said offending vehicle and hence the insurer was not liable to indemnify the owner and pay compensation to the claimant. Hence, he contended that the Insurance Company had no obligation to satisfy the liability that would arise. During the enquiry before the tribunal, the claimant had established the occurrence of the accident, actionable negligence on the part of the driver of the offending vehicle and its insurance coverage and the same has remained unchallenged either by the owner of the vehicle or by the insurer.
6. The Tribunal thereafter framed issues. The claimant got examined himself as PW-1 and got examined the Doctor who issued the wound certificate as PW-2 and got marked Exhibits P1 to P14. The Insurance Company got examined its Law Officer as RW-1 and got marked Exhibits R1 and R2. The Tribunal after evaluation of the oral and documentary evidence has awarded the claimant a total compensation of Rs.4,43,000/- with interest at 6% per annum from the date of petition till the date of realisation to be payable by the Insurance Company. The claimant / appellant has preferred MFA No.6452/2015 seeking for enhancement of the said compensation awarded by the Tribunal.
Further, the Tribunal by its judgment, had fastened the liability on the Insurance Company to pay the said compensation. Aggrieved by the said finding, the Insurance Company has filed the appeal in MFA No.4138/2015 with a prayer to set aside the judgment of the Tribunal 7. The learned counsel for the claimant - appellant in MFA No.6452/2015 contended that the Tribunal has granted very meager compensation on the whole. Having regard to the fact that the appellant sustained Type II B Sub-Trochanteric fracture of right femur and fracture of both bones of right leg middle 1/3rd due to which he underwent surgery and was an in-patient in hospital for several days and moreover was under treatment as an out-patient for over eight months, the Tribunal ought to have granted substantial amount towards ‘Pain and suffering’. Hence, he contends that the compensation towards the said head requires to be enhanced.
Though he was an in-patient for several days, the Tribunal erred in granting only a sum of Rs.3,000/- under the head ‘Attendant charges’ and no amount being awarded towards conveyance, nourishing food, etc., compensation under the said head requires to be enhanced suitably.
The accident being of the year 2013, the Tribunal ought to have adopted the appellant’s income at Rs.8,000/- in order to arrive at the compensation towards ‘Loss of future income due to permanent disability’. It has erred in adopted the income at Rs.6,000/- per month while computing compensation under the said head.
Thus he contends that compensation towards ‘Loss of income during treatment period’ also would be enhanced accordingly taking his income at Rs.8,000/- per month. He further contends that the appellant being unmarried, the compensation towards ‘Loss of future amenities and unhappiness’ also requires to be enhanced. Since he has to undergo future medical expenses for removal of implants, learned counsel contends that compensation under the said head also requires to be enhanced suitably. Thus, the learned counsel contends that the compensation awarded by the Tribunal under the above mentioned heads be enhanced suitably.
8. Learned counsel for the appellant in MFA No.4138/2015 who is the Insurance Company contends that the Tribunal had lost sight of the fact that the driving licence of the driver had expired on 02.10.2012 whereas the accident occurred on 26.09.2013 and has wrongly fastened the liability on the Insurance Company. Though the Tribunal has observed that the driver of the offending vehicle had no valid and effective driving licence as on the date of the accident, but however since the licence was renewed after the date of the accident, the Tribunal has fastened the liability on the Insurance Company placing reliance on a judgment reported in 2014 ACJ 2873, which is erroneous and requires interference. Hence, the learned counsel for contends that the judgment and award of the Tribunal be set aside and the Insurance Company be exonerated of the liability fastened.
9. On a careful evaluation of the material on record having regard to the contentions put forth by the learned counsel for both the parties, it is seen that the driver of the offending vehicle had the licence to drive a motor vehicle with gear, light motor vehicle transport vehicle, LMV cab and PSV bus, which licences were obtained much before the date of the accident. The case on hand involves a Tata Sumo vehicle which is an LMV passenger carrying vehicle. Hence, the driver had the required licence as on the date of the accident to drive the said vehicle. In addition to these facts, in view of the judgment of the Apex Court in MUKUND DEWANGAN VS. ORIENTAL INSURANCE CO.LTD., (2017) 14 SCC 663, the appeal in MFA No.4138/2013 filed by the Insurance Company ought to be dismissed.
10. As regards enhancement of compensation granted by the Tribunal under various heads, I find that it would be just and proper to enhance the compensation towards ‘Pain and suffering’ by another Rs.10,000/-. Further, since the claimant was an in- patient for several days in Hospital, another Rs.1,000/-
is hereby enhanced under the head ‘Attendant charges’. As rightly contended by the learned counsel, the accident being of the year 2013, the Tribunal ought to have adopted the appellant’s income notionally at Rs.8,000/- per month in order to arrive at the compensation towards ‘Loss of future income due to permanent disability’. I find that the Tribunal has erred in adopting the income at Rs.6,000/- per month while computing compensation under the said head. Hence, with the monthly notional income at Rs.8,000/- and disability at 15% and with multiplier ‘18’ as adopted by the Tribunal, the compensation towards ‘Loss of future income due to permanent disability’ would come to Rs.2,59,200/- (8000 x 12 x 18 x 15/100) as against Rs.1,95,000/- awarded by the Tribunal.
In view of the monthly notional income being held at Rs.8,000/-, the compensation towards ‘Loss of income during treatment period’ is hereby arrived at Rs.24,000/- (8000 x 3) as against Rs.18,000/- granted by the Tribunal. Further, the appellant being unmarried, the compensation towards ‘Loss of future amenities and unhappiness’ is enhanced by another sum of Rs.10,000/-. Since I find justification in the contention of the learned counsel that the claimant has to undergo future medical expenses for removal of implants, compensation under the said head is enhanced by another Rs.15,000/-.
In view of the discussion made above and with the altered factors, the compensation is re-worked out as under:-
The total compensation would come to Rs.5,49,200/- as against Rs.4,43,000/- awarded by the Tribunal. The total enhanced compensation would come to Rs.1,06,200/-.
Accordingly, I proceed to pass the following:
O R D E R The appeal in MFA No.6452/2015 is allowed in part. In modification of the impugned judgment and award dated 12.03.2015 passed by the Tribunal in MVC No.6509/2013, the compensation payable to the claimant is enhanced from Rs.4,43,000/- to Rs.5,49,200/-. The enhanced compensation would come to Rs.1,06,200/-. The insurer shall deposit the enhanced compensation in addition to the compensation already awarded by the Tribunal with interest at 6%, before the tribunal within four weeks from the date of receipt of certified copy of this judgment and on such deposit, the same shall be disbursed to the claimant in terms of the award, on proper identification. However, the impugned judgment and award, in so far as it relates to the deposit is concerned, shall remain unaltered. Further, amount in deposit if any before this court, shall be transferred to the concerned MACT, forthwith.
The appeal in MFA No.4138/2015 filed by the Insurance Company stands dismissed.
Office to draw the decree accordingly.
Sd/- JUDGE KS