IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE H.P. SANDESH M.F.A.No.3480/2012 (MV) BETWEEN:
SHIVAKUMAR L, S/O LOKESHAPPA, AGED ABOUT 29 YEARS, RESIDING AT KOTHAVAL STREET, 1ST BLOCK, MADHUGIRI TOWN, TUMKUR DISTRICT. … APPELLANT (BY SRI K. SHANTHARAJ, ADVOCATE) AND:
1. ASIF, S/O IQBAL, AGE MAJOR, ECM CYCLE SHOP, MADHUGIRI TOWN-572 132. TUMKUR DISTRICT.
2. M/S. UNITED INDIA INSURANCE CO. LTD., REP. BY ITS MANAGER, 1ST FLOOR, JAYADEVA COMPLEX, P.B. NO.54, B.H. ROAD, TUMKUR-572 101. ... RESPONDENTS (BY SRI C.S. HIREMATH, ADVOCATE FOR R-1, SRI RAVISH BENNI, ADVOCATE FOR R-2) THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 10.09.2009 PASSED IN MVC.NO.1228/2002 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE (SR.DN.) AND MACT, MADHUGIRI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS M.F.A. COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This appeal is filed against the judgment and award passed in M.V.C.No.1228/2002 dated 10.9.2009, on the file of the Additional City Civil (Sr.Dn.) and MACT, Madhugiri, questioning the quantum of compensation and fastening the liability on the insured.
2. The brief facts of the case is that the appellant – claimant met with an accident on 25.10.2002 and suffered fractures and he was subjected to surgery. He was an inpatient for a period of 22 days. Due to the injuries sustained, he has suffered permanent disability and is unable to do his work.
3. In order to substantiate his case, the appellant – claimant got himself examined as P.W.1 and examined the doctor as P.W.2 and got marked the documents at Exs.P.1 to 37. On the other hand, R.W.No.1 is examined on behalf of the Insurance Company and got marked Exs.R.1 to 3. The Court below after considering both oral and documentary evidence, granted compensation of Rs.1,21,500/- and fastened the liability on the respondent No.1 on the ground that there was no permit. Being aggrieved by the judgment and award and fastening the liability, the claimant has preferred this appeal.
4. The grounds urged in the appeal is that the Court below has committed an error in fastening the liability on the insured, instead of the Insurance Company. The other ground urged by the appellant is that the compensation awarded by the Court below under all heads are very meager and it requires interference of this Court.
5. The learned counsel for the appellant reiterated the grounds urged in the appeal in his arguments and brought to the notice of this Court the awarding of the compensation under different heads and would contend that the same is very meager.
6. Per contra, the learned counsel for the Insurance Company would submit that when the injured was taken to the hospital, his income was declared as Rs.2,500/- per month.
Hence, the Court below taking note of the same, awarded the compensation under different heads and the same is just and reasonable and it does not require any interference.
7. Having heard the arguments of the learned counsel for the appellant and the learned counsel for the respondents, the points that arise for the consideration of this Court are:
(i) Whether the Court below has committed an error in not awarding just and reasonable compensation and it requires interference of this Court?
(ii) Whether the Court below has committed an error in fastening the liability on the insured, instead of the Insurance Company?
Point No.(i):
8. Having considered both oral and documentary evidence available on record, the Court below while awarding the compensation towards pain and suffering awarded an amount of Rs.10,000/-. The same appears to be very meager. The records disclose that he was an inpatient for a period of 22 days and the wound certificate, which is marked as Ex.P.3 discloses that he had suffered fracture of both the bones of right leg. When such being the case, awarding of Rs.10,000/- under the head pain and suffering is very meager and the same is enhanced to Rs.40,000/-.
9. The Court below considering the medical bills to the tune of Rs.4,380/- produced under Exs.P.16 to 24, rightly awarded an amount of Rs.4,500/- and there are no grounds to interfere with the same.
10. The Court below considering the hospitalization of the injured and considering conveyance and other attendant charges, awarded an amount of Rs.20,000/-. Exs.P.28 and 29 goes to show that the injured was an inpatient for 22 days and he was subjected to surgery and he needs an attendant and conveyance also. Hence, awarding an amount of Rs.20,000/- appears to be on the lower side and it is enhanced to Rs.30,000/-.
11. The Court below taking the income of the claimant as Rs.2,500/- per month and the fact that the accident had taken place in the year 2002, has awarded an amount of Rs.15,000/- towards loss of income. The notional income ought to have been taken as Rs.3,500/- in the absence of any documentary evidence. The Court below has committed an error in taking the income as Rs.2,500/- per month and it requires interference. By taking his income as Rs.3,500/- per month and taking into note of the fact that it requires minimum four months for healing of the injuries and uniting of the fracture, it is appropriate to award an amount of Rs.14,000/- towards loss of income during laid up period.
12. The Court below while calculating the loss of future income, considered the evidence of the doctor – P.W.2, who has spoken about permanent disability of 40-45% to the lower limb and 13-15% to the whole body. The Court below has rightly taken 15% permanent disability, but has wrongly taken the income as Rs.2,500/- per month and committed an error in applying the multiplier ‘16’ as against ‘18’. The same requires to be modified. Considering his income as Rs.3,500/- per month and taking the multiplier of ‘18’, it comes to Rs.1,13,400/- (Rs.3,500/- x 12 x 18 x 15/100) as against Rs.72,000/-.
13. On perusal of the judgment and award of the Trial Court, it is evident that no compensation is awarded under the head of loss of amenities. The injured aged about 19 years has suffered 15% disability to the whole body and he has to lead rest of his life with that disability. Hence, it is appropriate to award Rs.30,000/- under the head loss of amenities.
Total compensation comes to Rs.2,31,900/- as against Rs.1,21,500/-.
Point No.(ii):
14. With regard to fastening the liability on the insured is concerned, the learned counsel for the appellant submits that in view of the recent judgment in the case of RANI AND OTHERS v. NATIONAL INSURANCE COMPANY LIMITED AND OTHERS reported in 2018 ACJ 2430, the Apex Court directed the Insurance Company to deposit the amount of compensation with liberty to recover the same from the owner of the vehicle. Hence, the liability has to be fastened on the Insurance Company with the liberty to recover the same. Now it is settled law that even in violation of the permit also, the Insurance Company has to pay the compensation in view of the above judgment and the Insurance Company may be given the liberty to recover the same from the owner of the vehicle. Hence, the liability fixed on the owner has to be modified in view of the principles laid down in the judgment referred supra.
15. In view of the discussions made above, I pass the following:
ORDER (i) The appeal is partly allowed.
(ii) The judgment and award of the Trial Court is modified granting the compensation of Rs.2,31,900/- as against Rs.1,21,500/- with interest at 6% per annum from the date of petition till realization.
(iii) The Insurance Company is directed to deposit the amount of compensation within four weeks with liberty to recover the same from the owner of the vehicle.
(iv) The release of the amount is unaltered.
Sd/- JUDGE MD