IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 22ND DAY OF MARCH, 2019 BEFORE:
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MISCELLANEOUS FIRST APPEAL NO.2101 OF 2010 [MV] BETWEEN RANGANATHA, S/O. NAGARAJA, AGED ABOUT 24 YEARS, OCCUPATION-COOLIE, R/O. GANDHI NAGAR, HOSADURGA TOWN, CHITRADURGA DISTRICT. ... APPELLANT [BY SRI. S.C.VIJAYAKUMAR, ADVOCATE] AND 1. RAGHU, S/O. DURUGAPPA, AGED ABOUT 50 YEARS R/O. NEAR AMBU SHANKARI TEMPLE, KELEGOTE, CHITRADURGA, CHITRADURGA DISTRICT. (PREVIOUS OWNER).
2. H. HARISH, S/O. HANUMANTHAPPA, AGED ABOUT 24 YEARS, R/O. BESIDES BDO OFFICE, HOSADURGA, CHITRADURGA DISTRICT. (PRESENT OWNER) 3. THE BRANCH MANAGER, NEW INDIA ASSURANCE CO. LTD., TOWN CO-OP. SOCIETY BUILDING, NEAR TALUK OFFICE, CHITRADURGA. ... RESPONDENTS [BY SRI. M.NARAYANAPPA, ADVOCATE FOR R3.
R1 & R2 - NOTICE DISPENSED WITH VIDE COURT ORDER DATED 30.11.2012] * * * THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 03.12.2009 PASSED IN MVC NO.380/2007 ON THE FILE OF CIVIL JUDGE (SR.DN.) & MACT (ITINERARY), HOSADURGA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ADMISSION, THIS DAY THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal is preferred by the claimant, seeking enhancement of compensation awarded by the Tribunal, wherein a total compensation of Rs.90,260/- has been awarded for the appellant/claimant for the injuries sustained by him in a road traffic accident.
2. The brief facts of the case are that;
On 10.04.2007 at about 12.15 a.m., the appellant while traveling in an autorickshaw bearing reg. No.KA-16/8945 as a passenger from Hosadurga Bus Stand to BDO Office and when the said autorickshaw reached in front of BSNL Office, Hosadurga, the driver of the autorickshaw drove the same in a rash and negligent manner and due to which the autorickshaw toppled, on account of which the appellant sustained injuries.
Before the Tribunal, the claim petition was filed seeking a total compensation of Rs.5,00,000/- for the injuries sustained by the appellant in the aforesaid accident. The claim was resisted by the respondent/Insurance Company.
On behalf of the claimant, he was examined as P.W.1 and the doctor was examined as P.W.2. Exs.P1 to 8 were got marked in evidence. On behalf of the respondents, R.W.1 was examined and Exs.R1 to 11 were got marked.
3. The Tribunal after considering the evidence and the material on record awarded a total compensation of Rs.90,260/- with interest at 6% p.a. under the following heads:
Particulars Amount in Rs.
1. Pain and agony. … 38,000 2. Loss of amenities. … 45,360
4. The Tribunal after noticing that on the date of the alleged accident the driver of the offending vehicle had no driving licence to drive the same and further observing that in spite of service of notice, respondent Nos.1 and 2 before the Tribunal have remained absent, held that respondent No.2 i.e., the subsequent owner of the offending vehicle is liable to pay the compensation.
5. The learned counsel for the appellant assailing the Judgment and Award passed by the Tribunal would contend that the appellant was an agricultural coolie and he had an income of Rs.6,000/- p.m. and due to the accidental injuries he has suffered disability to an extent of 25% to the whole body and hence, he submits that the total compensation awarded is not commensurate with the injuries sustained by the appellant and accordingly he seeks to enhance the compensation by modifying the Judgment and Award passed by the Tribunal.
On the other hand, learned counsel for respondent No.3 submits that the Tribunal has awarded a just and reasonable compensation and there is no evidence with regard to the income of the deceased and therefore, the income taken by the Tribunal at Rs.3,000/- p.m. in respect of an accident which has occurred in the year 2007 is just and proper. He would further contend that the appellant has sustained fracture of left clavicle bone and the disability assessed by the doctor is exaggerated and therefore, he prays to dismiss the appeal. He would also contend that the insured has failed to adduce evidence to show that the driver of the offending vehicle was possessing a valid driving licence and the Tribunal is therefore, justified in fastening the liability on the owner of the vehicle i.e., respondent No.2 before the Tribunal and accordingly seeks to dismiss the appeal.
6. The fact that the appellant sustained injuries in a road traffic accident that occurred on 10.04.2007 involving the autorickshaw bearing reg. No.KA-16/8945 and the said autorickshaw being insured with respondent No.3 herein is not seriously disputed. In the absence of any proof with regard to the income of the appellant, the Tribunal assessed his monthly income at Rs.3,000/- p.m. The appellant has sustained fracture of left clavicle bone and fracture of left colles. According to the medical evidence, there is a disability of 25%. Considering the nature of work the Tribunal has assessed the disability at 7% and considering the age of the appellant who was aged about 21 years at the time of accident and applying the multiplier ‘18’, awarded a total sum of Rs.45,360/- towards loss of amenities, though the said amount ought to have been awarded towards loss of future income on account of disability. The appellant is also entitled for compensation towards loss of amenities. Considering the nature of injuries and the avocation of the appellant, a sum of Rs.20,000/- is awarded under the said head. The compensation awarded towards loss of income during the treatment period, attendant and rest is enhanced by Rs.5,000/-. Hence, I deem it just and proper to award a global compensation of Rs.25,000/- in addition to what has been awarded by the Tribunal.
7. Though the owner of the vehicle was served before the Tribunal, he has remained ex-parte. The Tribunal has observed that respondent No.2/owner of the vehicle himself lodged the complaint without giving name of the driver and therefore, he has intentionally avoided to appear before the Court. Respondent No.2 has failed in discharging his burden to show that the driver of the offending vehicle was holding a valid driving licence. The contention of the learned counsel for the Insurance Company is that this is a case where the driver of the offending vehicle was not holding a valid driving licence. However, it is not disputed that the vehicle was covered with a valid Insurance Policy. In the facts and circumstances of the case and in view of the decision of the Hon’ble Apex Court in the case of Pappu and others Vs. Vinod Kumar Lamba and another reported in AIR 2018 SC 592, the insurer shall pay the claim amount awarded to the claimant in the first instance with liberty to recover the same from the owner of the vehicle i.e., respondent No.2 before the Tribunal, in accordance with law. Accordingly, I pass the following:
ORDER The appeal is allowed in part. The Judgment and Award of the Tribunal dated 03.12.2009 passed by the Civil Judge [Sr. Dn.] and MACT [Itinerary], Hosadurga is modified.
The appellant is entitled for a compensation of Rs.25,000/- in addition to what has been awarded by the Tribunal with interest at 6% p.a. from the date of petition till realization.
Respondent No.3 shall pay the compensation amount to the appellant/claimant with liberty to recover the same from the owner of the vehicle/respondent No.2. The compensation amount shall be deposited by the Insurance Company within a period of four weeks from the date of receipt of a copy of this Judgment.
Sd/- JUDGE.
Ksm*