IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF MARCH 2019 BEFORE THE HON’BLE MRS JUSTICE K.S.MUDAGAL MISCELLANEOUS FIRST APPEAL NO.3805/2012 (MV) BETWEEN:
RANGAPPA S/O MADANAIKA AGED ABOUT 24 YEARS R/AT SINDHUVALLI VILLAGE JAYAPURA HOBLI MYSORE TALUK – 571 101 …APPELLANT (BY SRI K.M.SANATH KUMAR, ADVOCATE) AND:
1. HARIDAS S/O NANJAIAH AGED ABOUT 40 YEARS R/AT #2, B.B.KERI PULIKESHI ROAD, MANDI MOHALLA MYSORE – 571 101 2. THE DIVISIONAL MANAGER UNITED INDIA INSURANCE CO. LTD., NO.2911, SUNDAR ARCADE OPP. SUBURBAN BUS STAND B.N.ROAD, MYSORE – 571 101 3. MAHENDRA S/O IRAPPAJI AGED ABOUT 32 YEARS NO.139, SINDHUVALLI VILLAGE JAYAPURA HOBLI MYSORE TALUK & DISTRICT–571 101 ..RESPONDENTS (BY SRI O.MAHESH, ADVOCATE FOR R2;
NOTICE TO R1 HELD SUFFICIENT V/O/D 18.02.2015; NOTICE TO R3 HELD SUFFICIENT V/O/D 06.09.2016) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 31.10.2011 PASSED BY FAST TRACK COURT-I AND ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, MYSORE IN MVC NO.1399/2010 SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA HAVING BEEN HEARD AND RESERVED ON 28.02.2019 AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T “Whether compensation awarded by the Tribunal to the appellant in MVC No.1399/2010 is just and reasonable and whether the driver of the offending vehicle could under law, drive the transport vehicle also” are the questions involved in this case.
2. On 25.09.2010 at about 9.30 p.m. when the appellant was traveling in auto rickshaw bearing No.KA-09-A-2472 near TVS factory of Kadakola Sindhuvalli, the said auto rickshaw hit stationary vehicle canter tempo bearing No.CTQ 8949. In the accident, appellant suffered injuries and was treated for five days in B.G.S.Apollo Hospital, Mysore, as inpatient.
3. Respondent Nos.1 and 3 were owners of auto rickshaw bearing No.KA-09-A-2472 and respondent No.2 was insurer of the said vehicle.
4. Appellant filed MVC No.1399/2010 claiming compensation of Rs.12,50,000/- contending that accident occurred due to rash and negligent driving of auto rickshaw No.KA-09-A-2472 by its driver. He contended that in the accident, he suffered fracture of patella, hip dislocation, nasal bone fracture and concussive head injury thereby permanent disability. He further contended that he was working as mason and earning Rs.2,000/- per month. He contended that respondent Nos.1 and 3 being owners and respondent No.2 being insurer were liable to compensate him for the disability suffered in the accident etc.
5. Respondent No.1 did not contest the petition.
Respondent Nos.2 and 3 filed objections and contested the petition. They denied the accident, rashness and negligence on the part of the driver of auto rickshaw bearing No.KA-09-A-2472, injuries suffered by the claimant, his age, occupation, income and disability etc. They contended that accident occurred due to negligence of the driver of the goods tempo No.CTQ 8949 and the driver, owner and insurer of the said vehicle were necessary parties to the petition, therefore, this petition was bad for non-joinder of necessary parties.
6. Respondent No.3 contended that vehicle was insured with respondent No.2. Therefore, compensation if any, is payable by respondent No.2.
7. Respondent No.2 contended that at the time of accident, driver of auto rickshaw bearing No.KA-09-A-2472 was not holding valid driving licence. Therefore, it is not liable to pay the compensation.
8. In support of his claim, claimant got examined himself as PW.1. The doctors who treated him were examined as PW.2 and PW.3. Claimant got marked Exs.P1 to P18. On behalf of respondent Nos.2 and 3, Officer of Regional Transport Office was examined as RW.1 and Assistant Manager of Insurer was examined as RW.2 and got marked Exs.R1 to R3.
9. The Tribunal after hearing both sides, by the impugned judgment and award partly allowed the petition granted compensation of Rs.1,38,000/- with interest at 6% per annum payable by respondent Nos.1 and 3 on the following grounds:
(i) As on the date of accident, driver of the offending vehicle was holding driving licence to drive light motor vehicle non transport, whereas vehicle involved in the accident was light motor vehicle transport, thereby there was breach of policy condition and therefore, insurer was not liable to pay the compensation;
(ii) Claimant failed to prove that his income was Rs.20,000/- per month as alleged, therefore, considering his age and profession, his monthly income can be taken as Rs.4,000/- per month; and (iii) Though PW.2 and PW.3 gave evidence about injuries suffered by claimant, they did not issue disability certificate. Further the disability spoken by them is with reference to 25.6% to the whole body. But they did not state about what was the disability to the particular part of the body.
10. Thus, the Tribunal awarded compensation under different heads as follows:
Sl.
No.
Particulars Amount in Rs.
1 Pain and sufferings and for disablement 50,000/-
2 Conveyance 2,000/-
3 Attendant charges, food and nourishment 2,000/-
4 Medical expenses 68,700/-
5 Loss of income during the period of treatment 6 For discomfort and loss of amenities in life 12,000/-
3,300/-
Total 1,38,000/-
11. Sri K.M.Sanath Kumar, learned Counsel for the appellant seeks to assail the impugned award on the following grounds:
(i) Income of the claimant taken by the Tribunal is on lower side;
(ii) Though doctors deposed to the disability at 25.6% to the whole body, the Tribunal has not awarded any compensation under the head loss of earning capacity and future earnings;
(iii) Compensation awarded on the head of pain and sufferings is on lower side;
(iv) Compensation awarded on other heads is also on lower side; and (v) In view of judgment of the Supreme Court in Mukund Dewangan v. Oriental Insurance Company Limited [AIR 2017 SC 3668] insurer is liable to pay the compensation.
12. Per contra, Sri O.Mahesh, learned Counsel for respondent No.2 seeks to justify the impugned award on the following grounds:
(i) Claimant did not adduce any evidence in proof of his income. Therefore, income considered by the Tribunal is just and reasonable one;
(ii) Doctors did not issue disability certificate and did not speak to the disability to particular part of the body. Therefore, non payment of compensation under the head of disability is justifiable;
(iii) Compensation awarded under other heads is also just and reasonable; and (iv) The judgment in Mukund Dewangan v.
Oriental Insurance Company Limited [AIR 2017 SC 3668] is not applicable and on reference, the said matter is pending before the larger bench.
13. Respondent Nos.2 and 3 contended that accident occurred due to rash and negligent driving of the goods tempo bearing No.CTQ 8949 and denied occurrence of the accident, rashness and negligence on the part of the driver of the vehicle auto rickshaw No.KA-09-A-2472. But the Tribunal rejected those contentions and held that accident occurred due to rash and negligent driving of the driver of auto rickshaw No.KA-09-A-2472. Respondent Nos.2 and 3 did not challenge those findings either by filing appeal or cross objection. Therefore, those findings have attained finality.
Regarding Liability:
14. Admittedly, Ex.R2 the policy issued by respondent No.2 for the offending vehicle covered the risk from 29.09.2009 to 28.09.2010. Ex.R1 is the driving licence extract of Kantharaju Swamy.R S/o. Revanna who was charge sheeted in criminal case for the charges of rash and negligent driving of the vehicle in question. Ex.R3 is the driving licence particulars of the said Kantharaju Swamy.R. Ex.R1 shows that the said driver was holding licence to drive light motor vehicle three wheeler non transport which was valid from 13.05.2009 to 12.05.2029. Ex.R3 also is to the same effect.
15. The insurer contends that offending vehicle was light motor vehicle transport, whereas the driver was holding the licence to drive light motor vehicle non transport only, therefore he was not holding valid driving licence to drive the offending vehicle. Therefore insurer contends that there was breach of policy condition and insurer is not liable to pay the compensation.
16. Therefore, question arises whether the person holding driving licence to drive light motor vehicle non transport could drive light motor vehicle transport. In this regard, on reference, the larger bench of the Supreme Court in Mukund Dewangan’s case referred to supra held that person entitled to drive particular class of vehicle is entitled to drive any other vehicle of the same class whether it lies in the category of transport or non transport.
17. Question No.4 of the reference in that regard was answered as follows:
(iv) The effect of amendment of Form 4 by insertion of “transport vehicle” is related only to the categories which were substituted in the year 1994 and the procedure to obtain driving licence for transport vehicle of class of “light motor vehicle” continues to be the same as it was and has not been changed and there is no requirement to obtain separate endorsement to drive transport vehicle, and if a driver is holding licence to drive light motor vehicle, he can drive transport vehicle of such class without any endorsement to that effect”.
(emphasis supplied) 18. Thus as on today, ratio as per Mukund Dewangan’s case is driving licence issued to drive light motor vehicle non transport covers light motor vehicle transport also. Though it was contended that the matter is referred to the larger bench, there is no interim stay to the ratio laid down in Mukund Dewangan’s case.
Therefore, ratio as applicable as on the date, has to be applied to the case on hand. Under these circumstances, findings of the Tribunal that insurer is not liable to pay the compensation is unsustainable.
Regarding quantum:
19. As on the date of accident, claimant was 22 years old. That was established by his evidence and medical evidence adduced before the Tribunal. He claims that he was working as mason. There is nothing on record to show that prior to the accident he had any disability to work. He was working as mason in unorganized sector. Therefore, it is difficult to accept any documentary evidence in proof of his income.
20. Accident occurred in the year 2010. The Tribunal assessed his income at Rs.4,000/- per month notionally. As per Notification No.M92(01)/2011-C1 dated 06.04.2011 issued by the Office of Deputy Chief Labour Commissioner (Central), Ministry of Labour and Employment, Government of India, the minimum wage of unskilled labour for ‘B’ area with effect from 01.04.2011 was Rs.205/- per day which comes to Rs.6,150/-. The accident occurred in Mysore and claimant was residing in Mysore. Mysore City comes in ‘B’ area of the notification.
21. As per the Notification No.KAE 95 LMW 2008 dated 25.01.2011, issued by the Labour Department, Government of Karnataka, the minimum wage of Mason with effect from 01.04.2010 was Rs.176.60 for Zone-I which comes to Rs.5,310/-. As per the notification, Mysore city is included in Zone-I area.
22. Having regard to the age and occupation of the claimant and the demand for masons due to boom in building construction activities, at any rate, the minimum wage of the claimant during that period could not be less than Rs.5,500/- per month. Therefore, the monthly income considered by the Tribunal is on the lower side and that should have been Rs.5,500/- per month.
23. To prove injuries, claimant examined PW.2, neurosurgeon who treated the claimant in BGS Apollo Hospital, Mysore and PW.3 Orthopedic surgeon who treated him in BGS Hospital, Mysore. Ex.P4 is wound certificate. Ex.P8 is discharge summary. Exs.P12 and P13 are case sheets, Exs.P14 to P17 are x-ray, x-rays, CT scan reports and x-ray reports. Those documents coupled with evidence of PW.2 and PW.3 show that claimant had suffered following injuries:
(i) Concussive head injury;
(ii) Bilateral Nasal bone fracture with soft tissue injury;
(iii) left knee joint open patella fracture; and (iv) left hip dislocation 24. Claimant was treated for the said injuries by PW.2 and PW.3 in BGS Apollo Hospital, Mysore from 25.09.2010 to 29.09.2010. PW.3 stated that claimant suffered 25.6% partial permanent disability in left lower limb. PW.2 states that claimant suffered 20% disability to the whole body. He says that due to head injury, claimant had suffered 5% disability and he cannot work in hot sun and he cannot do regular mason work. He has 15% disability due to reduced sense of smell.
25. The Tribunal rejected the claim on the head of loss of earning capacity due to disability on the ground that PW.2 and PW.3 have not issued disability certificate and did not state the disability with reference to the particular part of body.
26. The Tribunal accepted their evidence regarding injuries mentioned above and the treatment given to the claimant and period of treatment. The award shows that the Tribunal even did not suspect the disability spoken by the doctors. Under such circumstances the Tribunal was not justified in rejecting the claim only on the technical ground of PW.2 and PW.3 not issuing the disability certificates and not speaking to the disability with reference to the particular part of the body.
27. If the Tribunal found that the disability spoken by the respective doctors is on distinct heads and therefore works on higher side, it should have taken 1/3rd of the aggregate of the disability spoken by them which comes to 15.22% to the whole body. That can be rounded off to 16%.
28. Therefore, the Tribunal should have awarded compensation towards loss of future earning capacity due to such disability at the rate of 16%. At the time of accident, claimant was aged 22 years and the multiplier 18 applies for calculating future earnings. Therefore, compensation payable under the head loss of future earnings would be [Rs.5,500 x 18 x 12 x 16/100] Rs.1,90,080/-.
29. As per medical evidence, claimant had suffered left knee joint open patella fracture, bilateral nasal bone fracture and hip dislocation. Therefore, compensation awarded under the head pain and sufferings is on the lower side.
30. For the first fracture, it should have been Rs.40,000/- and Rs.10,000/- each for other two fractures and concussive head injury which is a grievous injury. Totally, Rs.70,000/- has to be awarded towards pain and sufferings.
31. Loss of income during laid up period should have been (Rs.5,500 x 3)= Rs.16,500/-. The evidence of doctor shows that the claimant had suffered reduced sense of smell, difficulty in squatting on the floor and to run. Therefore, awarding Rs.50,000/- on loss of amenities is just and proper. Having regard to the injuries suffered the just compensation payable on the on conveyance, attendant charges, food and nourishment is Rs.10,000/-. The medical expenses was granted based on the proof produced.
32. Therefore, the just compensation payable to the claimant is as follows:
33. Therefore, the appeal is partly allowed. The impugned judgment and award dated 31.10.2011 in MVC No.1399/2010 passed by the Fast Track Court-I and Additional MACT, Mysore is modified as follows:
Claimant is awarded compensation of Rs.4,05,280/- with interest thereon at 6% per annum from the date of petition till its realisation payable by respondent No.2-Insurer within two months from the date of receipt of copy of this order.
The award regarding investment in Fixed Deposit is maintained. In recovering the aforesaid award amount, there shall be an adjustment for the payments made, if any, by the respondents.
Sd/- JUDGE KSR