IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 07TH DAY OF MARCH, 2019 BEFORE THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MISCELLANEOUS FIRST APPEAL NO. 5789/ 2014(MV) C/W.
MISCELLANEOUS FIRST APPEAL NO.8826/2013 (MV) IN MFA NO. 5789/2014 BETWEEN:
RANGA REDDY S/O. NARAYANAPPA, AGED ABOUT 50 YEARS, RESIDENT OF NIMMAKALYALAHALLI VILLAGE, NANDIGANAHALLI POST, CHINT AMANI TALUK, CHIKKABALLAPURA DISTRICT – 563 125.
... APPELLANT (BY SRI SHIVARAJU M. K., ADVOCATE) AND:
1. SMT. SHAMA W/O CHAND PASHA @ CHAND, AGE: ABOUT 32 YEARS PERMANENT RESIDENT OF 10TH CROSS, AL AMEEN SCHOOL ROAD, CHAMUNDESHWARI EXTENSION, GANDHINAGAR, TIPTUR.
NOW R/AT NO.333, 3RD CROSS, VIJAYANANDA NAGAR, RAJAJINAGAR, BANGALORE – 560 010.
2. THE REGIONAL MANAGER M/S CHOLA MS GENERAL INURANCE CO., LTD., NO.9/1, NEAR BEGUM MAHAL, ULSOOR, BANGALORE – 560 040.
(BY SRI. K.V. NAIK, ADVOCATE FOR ... RESPONDENTS SRI. SHRIPAD V SHASTRI, ADVOCATE FOR R-1, SRI. H.S. LINGARAJU, ADVOCATE FOR R-2) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DATED 23.01.2013 PASSED IN MVC NO.7232 OF 2011 ON THE FILE OF THE XXIV ADDITIONAL SMALL CAUSE JUDGE AND XXII ACMM, MACT, BANGALORE, AWARDING COMPENSATION OF RS.1,62,500/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL DEPOSIT IN THE TRIBUNAL.
IN MFA NO. 8826/2013:
BETWEEN:
SMT. SHAMA W/O. CHANDH PASHA @ CHAND, AGED ABOUT 30 YEARS, PERMANENTLY R/AT 10TH CROSS, A1-AMEEN SCHOOL ROAD, CHAMUNDESHWARI EXTN. GANDHINAGAR,TIPTUR.
NOW R/AT NO.333, 3RD CROSS VIJAYANANDA NAGAR RAJAJINAGAR, BENGALURU.
(BY SRI. K.V. NAIK, ADVOCATE SRI. SHRIPAD V. SHASTRI, ADVOCATE ) ... APPELLANT AND:
1. SRI RANGA REDDY (MAJOR IN AGE), S/O NARAYANAPPA NIMMAKAYALAHALLI VILLAGE NANDIGANAHALLI POST, CHINTAMANI TALUK, CHIKKABALLAPUR DIST.
2. THE REGIONAL MANAGER M/S. CHOLA MS GENERAL INSURANCE CO. LTD., NO.9/1, NEAR BEGUM MAHAL, ULSOOR, BENGALURU – 560 040.
... RESPONDENTS (BY SRI. M.K. SHIVA RAJU, ADVOCATE FOR R-1; SRI, H.S. LINGARAJU, ADVOCATE FOR R-2) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) MV ACT AGAINST THE JUDGMENT AND AWARD DATED 23.01.2013 PASSED IN MVC NO.7232 OF 2011 ON THE FILE OF THE XXIV ADDITIONAL SMALL CAUSES JUDGE AND XXII ACMM, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE APPEALS COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T Though these appeals are listed for admission, with the consent of the learned counsel for both the parties, the appeals are taken up for final disposal.
2. MFA No.5789/2014 is filed by the owner/insured and MFA No.8826/2013 is filed by the claimant. Both the appeals are directed against the judgment and award dated 23.01.2013 passed in MVC No.7232/2011 on the file of the Motor Accident Claims Tribunal, XXIV Additional Small Causes Judge, Bengaluru.
3. I have heard the learned counsel for the parties.
4. The facts in brief are as follows:
On 14.10.2011 at about 6.00 a.m. when the claimant was travelling in an auto rickshaw bearing registration No.KA-05-6875 at Nimmakalahalli road, Chintamani Taluk, Chikkaballapura District, a Tata ACE bearing registration No.KA-40-5936 driven by its driver in a rash and negligent manner dashed against the said auto rickshaw, as a result of which, the claimant sustained grievous injuries. Immediately, she was shifted to Government Hospital, Chintamani and she took first aid treatment in the said hospital. Thereafter, she was shifted to Bowring and Lady Curzon Hospital, Bangalore, where she was treated as an inpatient from 15.10.2011 to 21.10.2011. She sustained fracture of shaft right humerus lower 1/3rd with inter condylar extension. She underwent surgery of ORIF with RECON plate and DCP. Again she was treated as an inpatient from 19.11.2012 to 21.11.2012.
It is the case of the claimant that she was aged about 28 years at the time of accident and she was doing tailoring and embroidery work and earning a sum of Rs.6,000/- per month. Due to the accidental injuries, she suffered permanent disability and she is unable to do any work. A total compensation of Rs.10,00,000/- was claimed before the Tribunal.
The claimant got herself examined as PW.1 and the Doctor, who treated her, was examined as PW.2. Exs.P.1 to P.24 were marked in evidence. On behalf of the respondents, RW.1 was examined and Ex.R.1 to R.3 were marked.
5. The Tribunal after considering the evidence and material on record awarded a total compensation of Rs.1,62,500/- under the following heads:
period of treatment 4 Loss of future earning capacity Rs.57,00/-
5 Loss of amenities Rs.15,000/- Total Rs.1,62,500/-
6. The Tribunal held that the driver of the offending vehicle did not have a valid and effective driving licence to run the said vehicle. Accordingly, the Tribunal held that the insured is liable to pay the compensation, thereby absolved the insurer from its liability to indemnify the insured.
7. Assailing the aforesaid judgment and award passed by the Tribunal, the appellant in MFA No.5789/2014 vehemently contended that the driver of the vehicle in question was holding a valid driving licence which was valid at the time of accident and therefore, the finding recorded by the Tribunal fastening the liability on the insured to pay the compensation is not in accordance with law. He would place reliance on the decision of the Hon’ble Supreme Court in the case of ‘Mukund Dewangan Vs. Oriental Insurance Co. Ltd.’ reported in ‘2017 (14) SCC 663’.
8. The learned counsel appearing for the claimant in MFA No.8826/2013 would contend that the injured claimant was eking out her livelihood by doing tailoring and embroidery work and earning a sum of Rs.6,000/- per month. However, the Tribunal has taken the income of the claimant at Rs.4,000/- per month, which is on the lower side. It is further contended that according to the Doctor, there is permanent functional disability of 15.4% to the whole body and the Tribunal has taken the disability at 7%, which is also not proper. It is submitted that the compensation awarded under different heads are on the lower side and the same require enhancement.
9. The learned counsel appearing for the insurance company would contend that the vehicle involved in the accident is a goods vehicle and the driver of the said vehicle was possessing the driving licence to drive the LMV (NT) and he was not having licence to drive a transport vehicle. There is no endorsement on the driving licence to drive the type of vehicle which was involved in the accident. Therefore, he submits that the Tribunal was justified in fastening the liability on the insured. It is further submitted that the total compensation awarded by the Tribunal is also just and proper and does not call for any interference. As such, he seeks to dismiss both the appeals.
10. According to the claimant, she was doing tailoring and embroidery work and earning a sum of Rs.6,000/- per month. The Tribunal has taken the notional income of the claimant at Rs.4,000/- per month. Though there is no corroborative piece of evidence to support her testimony, however, considering the fact that the accident is of the year 2011 and considering her avocation, I deem it appropriate to take the notional income of the claimant at Rs.6,000/- per month.
11. According to the Doctor - PW.2, the disability suffered by the claimant to the right upper limb is to an extent of 46.3% and 15.4% to the whole body. It is seen that loss of ROM is 9 degree and loss of muscle power is 19.8 degree. According to the wound certificate – Ex.P.4, she had sustained fracture of shaft right humerus lower 1/3rd with inter condylar extension. She underwent surgery of ORIF with RECON plate and DCP. Subsequently, she also underwent surgery for removal of implants.
12. Considering the aforesaid evidence on record, the disability suffered by the claimant could be assessed at 10% to the whole body as against 7% taken by the Tribunal. The age of the appellant being 29 years, the appropriate multiplier applicable is 17. Hence, the claimant is entitled for a total compensation of Rs.1,22,400/- (Rs.6,000x12x17x10%) as against the Rs.57,000/- awarded by the Tribunal towards loss of future earning capacity. The claimant is awarded a sum of Rs.18,000/- towards loss of income during the period of treatment as against Rs.12,000/- awarded by the Tribunal. A sum of Rs.25,000/- is awarded as against Rs.15,000/- towards loss of amenities. The compensation awarded under the heads pain and suffering and medical expenses are just and proper. In all, the claimant is entitled for a total compensation of Rs.2,43,900/-, rounded off to Rs.2,44,000/- as against Rs.1,62,500/- awarded by the Tribunal.
13. The Tribunal held that there was no evidence to show that the driver of the offending vehicle was possessing a valid driving licence to drive a goods vehicle, accordingly, fastened the liability on the insured, thereby exonerated the insurer from paying the compensation. In this regard, it is seen that the driving licence extract of the driver is marked as Ex.R.2. The said driving licence was issued to drive M/CY WG, LMV (NT), which was valid from 22.12.2010 to 2.6.2024. It is mentioned in B-Register extract –Ex.R.3 that unladen weight of the goods is 805 kgs and laden weight is 1,550 kgs. The driver of the vehicle in question was possessing LMV –NT-Car. In view of the decision of the Hon’ble Supreme Court in Mukund Dewangan’s case (supra), no separate endorsement is required to drive a transport vehicle in the category of LMV, which was involved in the instant case. In view of the same, fastening the liability on the insured is not proper and the insurance company is liable to pay the compensation. Accordingly, I pass the following order:
(i) MFA No.5789/2014 is allowed. MFA No.8826/2013 is allowed in part.
(ii) The judgment and award dated 23.01.2013 passed in MVC No.7232/2011 on the file of the Motor Accident Claims Tribunal, XXIV Additional Small Causes Judge, Benglauru, is hereby modified. The appellant in MFA No.8826/2013 is entitled for a total compensation of Rs.2,44,000/- as against Rs.1,62,500/- awarded by the Tribunal.
(iii) The order of the Tribunal directing the first respondent/owner to pay the compensation is hereby set aside. The respondent No.2 – insurance company shall pay the compensation.
(iv) The compensation awarded shall carry interest at the rate of 6% per annum from the date of petition till the date of deposit.
(v) The insurance company shall deposit the entire amount within a period of four weeks from the date of receipt of a certified copy of this order.
The amount in deposit in MFA No.5789/2014 shall be refunded to the appellant.
IA No.2/2015 in MFA No.5789/2014 does not survive for consideration and the same is dismissed.
SD/- JUDGE SA