IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF MARCH 2019 BEFORE THE HON’BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY MFA No.1309 OF 2012 (MV) BETWEEN:
Sathyanarayanareddy @ Sathyanarayana S/o. Late Hanumanthareddy, Aged about 27 years, R/o. Kasavarahatti Village, Now R/o. Behind Maruthi Complex, Housing Board Colony, Tyagarajanagara, Challakere-577 522. …Appellant (By Sri. Spoorthy Hegde N., Advocate) AND:
1. M/s. Oriental Insurance Co. Ltd., By its Branch Manager, P.B.No.59, Mayura Complex, R.F.Road, Ananthapura – 515 002, A.P.State.
2. B.Thippeswamy S/o. B. Hanumappa, Aged about 45 years, Owner of Bus No.KA-16/B-7999, Bharagavi Dallali Mandi, ‘A’ Block, RMC Yard, Chitradurga – 577 501. …Respondents (By Sri. Ashok N. Patil, for R-1; Respondent No.2 served) This MFA is filed under Section 173(1) of Motor Vehicles Act against the Judgment and award dated:08.06.2010 passed in MVC No.136/2007 on the file of the Civil Judge (Sr.Dn.), Challakere, 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 filed under Section 173 (1) of the Motor Vehicles Act, 1988, seeking enhancement of the compensation awarded by the learned Civil Judge (Sr.Dn.), Challakere, (hereinafter for brevity referred to as ‘The Tribunal’, for short), by judgment and award dated 08.06.2010, passed in MVC No.136/2007.
2. The summary of the case of the claimant in the Tribunal is that on 6.5.2006, while he was travelling as a passenger in a bus bearing registration No.KA-16-B-7999 from Kasavarahatti to Pillalapalli village and while the bus was going near Duggavara on Obalapura Road, due to the rash and negligent driving of the said bus by its driver, who lost the control of his driving, it rammed to a road side tree resulting in road traffic accident. Due to the said accident, he sustained simple and grievous injuries on various parts of his body, including the fractures. He was treated as inpatient in Bapuji Hospital, Davanagere, for more than ten days and has spent a sum of `2 lakhs for medical expenses. Stating that at the time of accident, he was an agriculturist earning `6,000/- per month and due to the injuries sustained by him, he has been totally disabled to do any avocation and earn his livelihood, the appellant has prayed for a total compensation of a sum of `4 lakhs payable by the respondent Nos.1 and 2 respectively in their capacity as owner and insurer of the alleged offending vehicle respectively.
3. Before the Tribunal, the claimant got himself examined as PW-1 and got marked documents from Exs.P-1 to P-33. On behalf of the respondent-Insurance Company, one Sri V.Somashekar, its officer, was examined as RW-1 and documents at Exs.R-1 and R-2 were marked.
4. After analysing the evidence and the materials placed before it, though has held that the claimant was entitled for medical expenses of a sum of `8,000/- against the medical bills he has produced for a sum of `12,586/- and also that he was entitled for compensation towards mental shock and agony, pain, nutritious food and special diet, attendant charges and conveyance, loss of income during the period of treatment, loss of amenities and enjoyment of life, instead of assessing the compensation applicable under different heads, it has awarded a global compensation of a sum of `22,000/- with interest at 6% thereupon. However, it fixed the liability only upon the owner of the offending vehicle exonerating its insurer from its liability on the ground that respondent No.1/owner has allowed his bus as contract carriage for a marriage ceremony without a valid and appropriate contract carriage permit and route. It is against the said judgment and award passed by the Tribunal, the claimant has filed this appeal.
5. The appellant/claimant in his memorandum of appeal has taken a contention that the quantum of compensation awarded by the Tribunal under various heads are all meager. Further stating that the Tribunal ought to have awarded the compensation as claimed by him, has prayed for allowing the appeal.
6. The present appeal being the claimant’s appeal and the respondents having not preferred either cross-objection or a counter appeal, the question of occurrence of accident on the date, time and place as alleged by the claimant and also the alleged rash and negligent driving on the part of the driver of the offending vehicle is not in dispute. The only question that is required to be considered is about the reasonableness of the quantum of compensation awarded and the liability of the insurer to pay the compensation amount and to recover it subsequently from the owner of the offending vehicle.
7. Heard the arguments from both sides and perused the materials placed before this court.
8. The learned counsel for the appellant/claimant in his argument submitted that the medical documents, more particularly, the wound certificate and the medical certificate at Exs.P-5, P-7 and P-8, clearly go to show that the claimant had sustained two severe fractures to both his legs and was also inpatient in the hospital for more than sixteen days. The very discussion made by the Tribunal, as well the documents go to show that he had suffered serious disability which disabled him to pursue any avocation in future. As such, the compensation deserves to be enhanced under various heads, including `pain and agony’, compensation towards `physical disability, and `loss of amenities’ etc., 9. Learned counsel for the respondent-Insurance Company in his arguments submitted that the Tribunal has appreciated the oral, as well documentary evidence in its proper perspective and has rightly awarded the compensation which is just and reasonable and the same does not warrant any interference.
10. The claimant in his evidence has stated that in the accident in question, he has sustained two fractures both to his left leg and right leg, apart from several other injuries like bruise and swelling on other parts of the body. He has also produced the documents at Exs.P-1 to P-33, in which, Ex.P-5 is the wound certificate, Ex.P-7 is the inpatient medical certificate issued by Bapuji Hospital, Davanagere, and Ex.P-8 is the same hospital’s Radiological report. A perusal of these documents go to show that the doctor at the first instance who medically and clinically examined the injured after the accident, has opined that the injured claimant had sustained the following injuries :
“ 1. Swelling over (L) knee on posterior aspect with tenderness.
2. Bruise and tenderness over anterior aspect of (L) knee.
3. Suture wound present over (R) medial malleolous, swelling and tenderness.
4. Posterior tibial and dorsalis peslis movements restricted.
5. X-ray of left knee shows # of proximal and of (L) tibia X-ray of right ankle shows # of medial malleolous.
6. X-ray of Pelvis shows no fracture seen.”
Exs.P-7 and P-8 also go to show that the claimant had sustained fracture of medial condyle of left tibia with surgical fixation and fracture of medial malleolus of right tibia with surgical intervention. As such, towards `pain and agony’, the claimant is entitled for a sum of `30,000/-.
11. Even according to the Tribunal, the medical bills and prescriptions produced by the claimant from Exs.P-7 to P-29 are amounting to `12,586/-. Though the claimant as PW-1 has stated that he has spent a sum of `2 lakhs towards his treatment, the medical documents would go to show only for a sum of `12,586/-. The Tribunal has not given as to on what reason it has stated that some of the medical bills are not genuine documents. In view of the fact that those medical bills and prescriptions have not been seriously disputed by the respondents, the actual medical expenses evidenced from Exs.P-7 to P-29 which amounts to `12,586/- is required to be awarded as compensation towards medical expenses. Thus, the claimant is entitled for a compensation of `12,586/- towards medical expenses.
12. The evidence of PW-1, as well the hospital certificate at Ex.P-7 go to show that the claimant was inpatient for seventeen days in the hospital and his evidence would go to show that thereafter, he was advised bed rest, thus, taking that due to fracture of two bones on both the limbs, he must have laid down for a period of three months. The compensation towards `loss of income’ for the said three months, taking his monthly income at `3,750/-, which is a notional income prevailing for the said year, would come to `11,250/-, for which, he is entitled to.
13. Towards `attendant expenses, diet and nutritious food expenses’, I feel it reasonable to award a compensation of a sum of `10,000/-.
14. Though the claimant has stated that due to the injuries sustained by him in the accident, he has become permanently disabled from pursuing his avocation, as such, he has lost his income in its entirety, but, there is no medical evidence to the effect that he has been suffering with any percentage of permanent partial disability. Still by the nature of the injuries sustained by him, as could be noticed in Exs.P-5, P-7, P-8 and the evidence of PW-1, it is convinced that the claimant is suffering with some disability which has not only deprived him of the amenities in his life, but, has also come in the way of his future income. Thus, towards `loss of amenities and disability’, put together, I am of the view that a total compensation of a sum of `50,000/- be awarded to the claimant.
15. Barring the above, the claimant/appellant is not entitled for compensation under any other heads or for enhancement of compensation under any other heads. Thus, in total, he is entitled for compensation in a sum of `1,13,836/-. After deducting the quantum of compensation of a sum of `22,000/- awarded by the Tribunal, for the difference amount of a sum of `91,836/-, the claimant is entitled as an enhancement.
16. The second argument which the learned counsel for the appellant canvassed is regarding the Tribunal’s error in not holding the insurer liable to pay the compensation to him. Learned counsel for the appellant submitted that he would not dispute the fact that as at the time of the accident, the bus in which the claimant was travelling had exceeded the territorial jurisdiction prescribed in the permit, as such, to ply in the zone where it met with an accident, the vehicle was not having route permit. However, learned counsel submits that in view of the judgment of Hon’ble Apex Court in Amrit Paul Singh and another –vs- TATA AIG General Insurance Co. Ltd., and others, reported in AIR 2018 SC 2662, the insurer cannot be exonerated from its liability to pay the compensation to the claimant, but, insurer be directed to pay the awarded amount to the claimant with liberty to recover the same from the owner of the vehicle.
17. The Hon’ble Apex Court in Amrit Paul Singh’s case (supra), wherein the offending tractor had no necessary permit at the time of the accident, still was pleased to hold that the insurer of the vehicle is liable to pay the awarded amount of compensation to the claimant with liberty to recover the same from the owner of the offending vehicle.
18. The learned counsel for the respondent- Insurance Company fairly submits that in view of the said judgment of Hon’ble Apex Court in Amrit Paul Singh’s case (supra), he would not dispute the position of law that pay and recovery principle is applicable to the case on hand also.
19. In view of the above, the respondent- Insurance Company requires to be directed to pay the compensation amount awarded to the claimant together with accrued interest thereupon, however, having liberty to recover the said amount from the owner of the vehicle.
Accordingly, I proceed to pass the following order :
ORDER The Appeal is allowed in part.
The judgment and award dated 08.06.2010, passed by the learned Civil Judge (Sr.Dn.), Challakere, in MVC. No.136/2007, is modified to the extent that the compensation awarded at `22,000/- is enhanced by an additional sum of `91,836/-, thus, making the total amount for which the claimant is entitled at `1,13,836/-.
The judgment under appeal dismissing the claim petition against 2nd respondent-Insurance Company is set aside and 2nd respondent-Insurance Company is liable to pay the awarded amount together with interest ordered thereupon to the claimant and then to recover the same from respondent No.1- owner of the alleged offending vehicle. The 2nd respondent-Insurance Company is directed to deposit the awarded amount together with interest ordered thereupon before the concerned Tribunal within six weeks from today.
The rest of the order of the Tribunal with respect to awarding the interest, its rate or terms regarding release of the amount awarded shall remain unaltered. Fifty percent (50%) of the compensation amount now enhanced under this appeal be deposited in any Nationalised Bank in the name of the claimant/appellant for a period of three years and after its maturity, the entire proceeds be released to him without anticipating any further orders from the Tribunal and remaining 50% be released to the appellant/claimant, immediately after its deposit by the respondent and in accordance with law.
Draw modified award accordingly.
The Registry is directed to transmit a copy of this judgment along with lower Court records to the concerned Tribunal without delay.
Sd/- JUDGE bk/