IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE S.G.PANDIT M.F.A.No.5981/2013 [MV] A/W M.F.A.No.3621/2013 [MV] M.F.A.No.5981/2013 BETWEEN:
MR. RAMAKRISHNA BHAT S/O LATE GOPAL BHAT AGED ABOUT 42 YEARS R/O HUYARU, 76-HALADY KUNDAPURA TALUK-576 201.
(BY SRI.MAHESH SHETTY, ADV.) AND:
1. MR. MOHAMMED UJEER S/O NIJAMUDDIN SAHEB AGED 59 YEARS R/O “AYISHA MANZIL”
ALBADI VILLAGE, BELVE POST KUNDAPURA TALUK-576 201.
2. NATIONAL INSURANCE CO. LTD., BRANCH OFFICE, GANESH MAHAL KUNDAPURA-576 201.
(BY SRI.K.S.LAKSHMINARASAPPA, ADV. FOR SRI. B C SEETHARAMA RAO, ADV. FOR R2 R1-NOTICE NOT ORDERED) ... APPELLANT ... RESPONDENTS THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 22.01.2013 PASSED IN MVC NO.431/2008 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT, MACT, KUNDAPURA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
M.F.A.No.3621/2013 BETWEEN:
NATIONAL INSURANCE CO. LTD., KUNDAPURA BRANCH THROUGH ITS REGIONAL OFFICE NO.144, SUBHARAM COMPLEX M G ROAD, BANGALORE-560001 REP. BY ITS ADMINISTRATIVE OFFICER SMT. D KARTHIKA.
(BY SRI.K.S.LAKSHMINARASAPPA, ADV. FOR SRI.B C SEETHARAMA RAO, ADV.) AND:
1. SRI RAMAKRISHNA BHAT AGED ABOUT 42 YEARS S/O LATE GOPAL BHAT RESIDENT OF HUYARU 76-HALADY KUNDAPURA TALUK-576 201.
2. MR. MOHAMMED UJEER AGED ABOUT 59 YEARS S/O MR NIJAMUDDIN SAHEB RESIDENT OF "AYISHA MANZIL" ALBADI VILLAGE, BELVE POST KUNDAPURA TALUK-576 201 ... APPELLANT (OWNER-CUM-DRIVER OF MARUTI VAN NO. KA 19-A-2404).
(BY SRI.MAHESH SHETTY, ADV. FOR R1 SRI P.N. HEGDE, ADV. FOR R2) ... RESPONDENTS THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 22.01.2013 PASSED IN MVC NO.431/2008 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT, MACT, KUNDAPURA, AWARDING A COMPENSATION OF RS.1,14,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL PAYMENT.
THESE M.F.A.s COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
COMMON /JUDGMENT Both the claimant and insurer are in appeals against the judgment and award dated 22.01.2013 passed in MVC No.431/2008 on the file of Fast Track Court & MACT, Kundapura.
2. The claimant is in appeal in MFA No.5981/2013 seeking enhancement of compensation awarded by the Tribunal, whereas the insurer is in appeal in MFA No.3621/2013 questioning the liability saddled on it.
3. The claimant filed claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation for the accidental injuries suffered in a Road Traffic Accident. It is stated that on 17.12.2007 when the claimant was proceeding in his Motor Cycle bearing Reg.No.KA-20-Q-644 from Halady side slowly, at that time, a Maruthi Omni bearing Reg.No.KA-19-A- 2404 came from Albdy side in a rash, negligent manner and dashed to the claimant’s motor cycle, due to which the claimant suffered grievous injuries. It is stated that the claimant took treatment at KMC Hospital, Manipal.
4. On issuance of summons, respondents 1 and 2 appeared before the Tribunal, but only the 2nd respondent – Insurance Company filed its objection denying the petition averments and contended that the accident occurred due to the negligence of the claimant himself and is also guilty of contributory negligence. It is also the contention that the driver of the Car was not having valid and effective driving licence at the time of accident. The claimant examined himself as PW.1 and examined the Doctor as PW.2, apart from marking 14 documents. The respondent got examined as RW.1 and got marked 3 documents. The Tribunal on assessing the material placed before it, awarded total compensation of Rs.1,14,000/- with interest at 6% p.a. from the date of petition till the date of realization, on
3. Compensation towards loss of income during Treatment period 9,000/-
4. Compensation towards loss of future income 45,000/-
Total Rs.1,14,000/-
Not being satisfied with the quantum of compensation awarded by the Tribunal, the appellant/claimant is before this Court, whereas the insurer is before this Court aggrieved by the portion of the judgment by which the insurer was directed to pay compensation at the first instance with liberty to recover the same from the owner.
5. Heard the learned counsel for the appellant and learned counsel for the respondent-insurer. Perused the entire material on record.
6. The learned counsel for the appellant submits that the income assessed by the Tribunal at Rs.3,000/- per month is on the lower side. He submits that the claimant was a coolie and was earning more than Rs.6,000/- per month, due to the accidental injuries he suffered 13% disability to particular limb, which would come in the way of his day to day work and avocation.
Further he submits that the Tribunal failed to award any compensation on the head loss of amenities, which the claimant would be entitled.
7. Per contra, the learned counsel for the respondent – Insurer submits that the compensation awarded by the Tribunal is just compensation which requires no interference. Further he submits that the driver of the offending vehicle had no valid and effective driving license as on the date of accident and as such saddling liability wholly on the insurer is erroneous.
8. On hearing the learned counsels for the parties and on perusal of the material on record, the following points arise for consideration in these appeals:-
a. Whether the Tribunal is justified in directing the insurer to pay the entire compensation at the first instance with liberty to recover the same from the owner ?
b. Whether the claimant would be entitled for enhancement of compensation in the facts and circumstances of the case ?”
Answer to the above points is in the affirmative for the following reasons :
The occurrence of the accident on 17.12.2007 involving Motorcycle bearing Reg.No.KA-20-Q-644 and the Maruthi Omni bearing Reg.No.KA-19-A-2404 and the accidental injuries suffered by the claimant are not in dispute in this appeal.
The insurer contended that the driver of the Maruthi Omni bearing Reg.No.KA-19-A-2404 had no valid and effective driving license to drive the car as on the date of accident. The car was a passenger carrying vehicle and the driver of the vehicle had only light motor vehicle licence without transport endorsement. To that effect the respondent – insurer had examined the Officer of RTO as RW.1. Ex.R1 is ‘B’ extract and Ex.R2 is the driving license particulars. Admittedly the driver of the car was possessing light motor vehicle license to drive the vehicle, but he had no transport endorsement for passenger vehicle. The Hon’ble Supreme Court in the case of MUKUND DEWANGAN V/S ORIENTAL INSURANCE COMPANY LIMITED reported in (2017) 14 SCC 663 has held that a person who possesses light motor vehicle licence could also drive light motor vehicle transport vehicle of the same category. In view of the said decision the contention of the insurer would no more survive for consideration. The insurer would be liable to indemnify the 1st respondent herein in MFA No.5981/2013 by paying entire compensation to the claimant. Thus the appeal filed by the insurer in MFA No.3621/2013 is dismissed.
The claimant submits that he was doing coolie work and was earning more than Rs.6,000/- per month, whereas the Tribunal assessed his income at Rs.3,000/- per month. The accident is of the year 2007. The claimant has not placed any material to indicate his exact income. In the absence of any material, the Court will have to determine the income on notional basis. This Court and Lok Adalath while settling the accidental claims of the year 2007 would normally take notional income of Rs.4,000/- per month. Hence, in the present case, in the absence of any documents to indicate the exact income of the claimant, it would be appropriate to take the notional income at Rs.4,000/- per month for determining the compensation on the head ‘Loss of future income’. The claimant has suffered left clavicle fracture and fracture of undisplaced left ZMC and Doctor has opined that the claimant suffers from 13% disability to particular limb and the Tribunal looking to the Doctor’s evidence and medical records and nature of injuries suffered by the claimant has assessed the whole body disability at 6%. The Tribunal has failed to award any compensation on the head loss of amenities. The claimant would be entitled to Rs.20,000/- towards the head loss of amenities. In view of the assessment of income of the claimant at Rs.4,000/- per month, he would be entitled for Rs.12,000/- on the head loss of income during laid up period. Thus, the claimant would be entitled to the following modified compensation.
9. Accordingly, the MFA No.5981/2013 is allowed in part. The impugned judgment and award is modified and the claimant is entitled to enhanced compensation in a sum of Rs.1,35,200/- as against Rs.1,14,000/- awarded by the Tribunal with interest at 6% p.a. from the date of petition till the date of realization.
The amount in deposit be transmitted to the concerned Tribunal.
Sd/- JUDGE NG* CT:bms