IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF JULY, 2019 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR MFA NO. 5430 OF 2013 (MV) BETWEEN SMT. RATHNAMMA W/O LATE RANGASWAMY AGED ABOUT 43 YEARS R/AT NO.318, BELLUR 6TH BLOCK, NAGAMANGALA TALUK, MANDYA DISTRICT ALSO AT 76, 10TH CROSS RAJENDRA BLOCK, 12TH MAIN BENGALURU – 560 050 ... APPELLANT (BY SRI. P. MAHADEVA SWAMY, ADVOCATE) AND 1. K. THAMMAIAH S/O SRI. KEMPAIAH BELLUR, NAGAMANGALA TALUK, MANDYA DIST – 571 432.
2. THE MANAGER UNITED INDIA INSURANCE CO. LTD., REGIONAL OFFICE KRISHI BHAVAN HUDSON CIRCLE BENGALURU – 560 027 ... RESPONDENTS (BY SRI.K. P. THRIMURTHY, ADV. FOR SRI. R. RAJAGOPALAN, ADV. FOR R2; R-1 SERVED.) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 05.12.2012 PASSED IN MVC NO.5022/2011 ON THE FILE OF THE 14TH ADDITIONAL JUDGE, COURT OF SMALL CAUSES, MACT, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal is preferred by the appellant – claimant being not satisfied with the compensation awarded by the Tribunal by its judgment and award dated 05.12.2012 in MVC No.5022/2011, seeking enhancement of compensation. The Tribunal had awarded compensation in a sum of Rs.1,18,600/- with interest at 6% from the date of petition till payment.
2. Heard the learned counsel for the appellant - injured and the learned counsel for the second respondent – United India Insurance Co. Ltd.
3. The factual matrix of the appeal is that on 18.06.2011 at about 1.30 p.m. when the appellant / injured was proceeding in an autorickshaw bearing Regn.No.KA-A-11-5195 as a passenger, the driver of the said auto had driven it in a rash and negligent manner and lost his control as a result of which the left back wheel of the autorickshaw fell into a ditch as a result of which the auto turned upside down. As a result, the appellant / injured fell down and sustained grievous injuries. Immediately, she was admitted to Adichunchanagiri Hospital, Balagangadharanatha Nagar wherein she was treated as an in-patient and had spent Rs.60,000/- towards medical, conveyance, nourishment, food, transport and other charges. Hence, she filed a claim petition before the Tribunal seeking compensation.
4. After service of notice, the owner of the offending vehicle as well as the insurer did appear before the tribunal, filed their written statements and contested the claim petition. During the enquiry before the tribunal, the claimant has 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.
5. The tribunal, after evaluation of the oral and documentary evidence has held that the accident had occurred due to rash and negligence of the driver of the offending vehicle and consequently awarded total compensation of Rs.1,18,600/- with interest at 6% per annum from the date of petition till the date of payment. It is this judgment which is under challenge in this appeal seeking for enhancement of compensation.
6. Learned counsel for the appellant contends that PW.2 Dr. Manjappa who had examined the appellant, had opined that the injured had sustained lacerated wound over the right arm with swelling apart from fracture of lower one-third of right of humerus and opined that the second injury was grievous in nature.
For the said injuries, the appellant was operated by way of open reduction with plates and screws. As a result, the Doctor assessed that she had sustained disability of 38% to the right humerus. One-third of it works out of 13% which would be the whole body disability. Further the X-ray also revealed non-union of fracture and hence it was opined that the injured required bone grafting operation. Hence, the learned counsel contends that the Tribunal was not justified in awarding very meager amounts of Rs.15,000/- towards ‘Pain and suffering’ and Rs.10,000/- towards ‘Loss of amenities and future discomfort’.
It is the further contention of the learned counsel that the appellant – injured was doing vegetable vending and was earning Rs.8,000/- per month. Even as per the settled norms of the Lok Adalath, the accident being of the year 2011, the Tribunal ought to have taken her monthly income at Rs.6,000/- per month. But however, it has committed grave error in taking her income at Rs.48,000/- per annum. Hence, the learned counsel contends that the compensation towards ‘Loss of future earning capacity due to disability’ may be re-assessed by this Court taking the monthly income at Rs.6,000/- per month and disability 13% as assessed by the Doctor.
Further, the Doctor though has opined that since the fractures were not united the injured further required bone grafting operation, the Tribunal was not justified in granting a very meager sum of Rs.3,000/- towards ‘Future medical expenses’ and seeks that the compensation towards the said head also be enhanced suitably. Thus, the learned counsel contends that taking into consideration these aspects, this appeal be allowed and the compensation awarded by the Tribunal may be enhanced by this Court suitably.
He further contends that the Court below erred in absolving the second respondent – insurer of its liability on the ground that driver of the vehicle involved in the accident had no valid and effective driving license. i.e., he did not have a driving licence with Transport endorsement. This finding of the Tribunal is contrary to the law declared by the Hon’ble Apex Court. In support of his contention learned counsel for the appellant has relied on a decision of the Apex Court in the case of MUKUND DEWANGAN VS. ORIENTAL INSURANCE CO.LTD., ((2017) 14 SCC 663) wherein it is held that the absence of transport endorsement per se cannot be a ground to absolve the insurer from the award liability and the MACT could not have let the insurer go free even in the absence of transport endorsement on the driving license of the driver of the offending vehicle. Hence, the learned counsel contends that the liability be fastened on the Insurance Company.
7. Learned counsel for the second respondent- insurer contends that since the policy condition is violated by the owner, the liability of insurer does not arise and the Tribunal has rightly fastened the liability on the owner of the vehicle. Further, the Tribunal taking into consideration the injuries suffered by the appellant, her age and avocation, has rightly assessed the income of the injured and the percentage of disability as well and has awarded just and fair compensation under all the heads and hence, the learned counsel contends that the impugned judgment and award passed by the Tribunal does not call for any interference and seeks that the appeal be dismissed.
8. Having heard the learned counsel for the parties, I find that the accident being of the year 2011, the income of the appellant ought to have been taken at Rs.6,000/- p.m. instead of Rs.48,000/- p.a. taken by the Tribunal. Hence, as per the settled norms in the Lok Adalath Chart, the notional income of the appellant is hereby taken at Rs.6,000/- to compute the compensation towards ‘Loss of future earning capacity due to disability’. Further, the whole body disability is assessed at 13%. Since the appellant was aged 40 years at the time of the accident, the appropriate multiplier would be ‘15’. Hence, with Rs.6,000/- as the income and disability at 13%, applying multiplier ‘15’ the compensation towards ‘Loss of future earning capacity due to disability’ is arrived at Rs.1,40,400/-
(6000 x 12 x 15 x 13/100) as against Rs.57,600/- awarded by the Tribunal.
Further, I find that the compensation awarded by the Tribunal towards other heads also requires enhancement. The compensation towards ‘Pain and suffering’ is hereby enhanced by another Rs.10,000/-, towards ‘Loss of amenities and future discomfort’ the compensation is enhanced by another Rs.10,000/-, compensation towards ‘Loss of earning during treatment period’ is enhanced by another Rs.8,000/- and towards ‘Future medical expenses’ the compensation is enhanced by another Rs.27,000/-.
9. In view of the discussion made above and with the altered factors, the compensation is re-worked out
20,000 18,000 1,40,400 30,000 2,56,400 Further, as regards the liability, it is relevant to refer to the judgment rendered in MUKUND DEWANGAN VS. ORIENTAL INSURANCE CO.LTD., (2017) 14 SCC 663 wherein Hon’ble Apex Court has answered the question against the insurer and in favour of the claimant holding that the insurer cannot avoid liability only on the ground of absence of Transport Endorsement. Therefore, the issue is no more res integra. Following the judgment passed in the Mukund Dewangan as stated supra, the liability to pay the compensation is hereby fastened on the second respondent – United India Insurance Company Ltd.
10. Accordingly, I proceed to pass the following:
ORDER The appeal is allowed in part. The impugned judgment and award dated 05.12.2012 passed by the Tribunal in MVC No.5022/2011 is hereby modified. The compensation payable to the appellant / claimant is enhanced from Rs.1,18,600/- to Rs.2,56,400/-. The total enhanced compensation would come to Rs.1,37,800/-. The second respondent – United India Insurance Co. Ltd., shall deposit the enhanced compensation with interest in addition to the amount already awarded by the Tribunal with interest, before the Tribunal within four weeks from the date of receipt of certified copy of this judgment. On such deposit, the same shall be disbursed to the appellant / claimant in terms of the award, on proper identification. The amount already in deposit if any, shall be adjusted.
However, the impugned judgment and award, in so far as it relates to the rate of interest, apportionment and deposit is concerned, shall remain unaltered.
Office to draw the decree accordingly.
Sd/- JUDGE KS