IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 4TH DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MFA NO.3651 OF 2015 (MV) BETWEEN SRI. DODDALINGAIAH, S/O. LATE BASAVAIAH, AGED ABOUT 32 YEARS, R/AT SEEGEKUPPE VILLAGE, MADABAL HOBLI, MAGADI TALUK, MAGADI TALUK-562 120. RAMANAGAR DISTRICT.
... APPELLANT (BY SRI. RAJANNA, ADVOCATE) AND 1. ICICI LOMBARD GENERAL INSURANCE CO. LTD., NO.89, S.V.R. COMPLEX, 2ND FLOOR, HOSUR ROAD, BANGALORE-560 030.
2. THIMMAPPA, S/O. LATE VENKATESH, MAJOR, R/AT VARDOHALLI VILLAGE, KASABA HOBLI, MAGADI TALUK, RAMANAGARA DIST-562 120.
... RESPONDENTS (BY SRI.B, PRADEEP, ADVOCATE FOR R1;
BY SRI. S.VISHWA MURTHY, ADVOCATE FOR R2) THIS MFA FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 11.02.2015 PASSED IN MVC NO.403/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE, JMFC, ADDITIONAL MACT, CHANNAPATTANA, RAMANAGAR DISTRICT, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ADMISSION, THIS DAY THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The injured-claimant has preferred this appeal being aggrieved by the inadequate compensation awarded by the Senior Civil Judge and MACT and Addl. MACT, Channapattana, in MVC No.403/2012, wherein a total compensation of Rs.4,67,495/- has been awarded to the claimant for the injuries sustained by him in a road traffic accident.
2. I have heard the learned counsel appearing on both sides.
3. The brief facts of the case are that on 10.06.2011 at about 1.00 p.m., the claimant/appellant was traveling in a two wheeler bearing registration No.KA-42-J-1612 as a pillion rider along with its rider one Suresh and when they reached in front of the land of one Javaregowda near Eregowdanakatte of Makali Village, an autorickshaw bearing registration No.KA- 42-6879 driven by its driver in a rash and negligent manner, dashed against the two wheeler, on account of which, both the rider and pillion rider fell down and sustained grievous injuries. The appellant was shifted to government hospital and for higher treatment, he was shifted to KIMS Hospital, Bengaluru and he underwent surgery.
4. It is the case of the appellant that he was earning a sum of Rs.15,000/- per month as an agriculturist and milk vendor. On account of the accidental injuries, he has suffered permanent disability and he has lost the earning capacity etc.
5. The Tribunal after considering the evidence and material on record, awarded a total compensation of Rs.4,67,495/- with interest at 8% per annum. The Tribunal has come to the conclusion that the offending vehicle had gone out side the permit area, which is not disputed and therefore held that Respondent No.1 is not liable to pay the compensation as there is violation of permit condition and hence saddled the liability on respondent No.1/owner of the vehicle.
6. Assailing the aforesaid judgment and award passed by the Tribunal, learned counsel appearing for the appellant contended that the total compensation awarded by the Tribunal is on a lower side and therefore, seeks to enhance the compensation. Further, he would contend that the Tribunal was not justified in fixing the liability on the owner of the vehicle instead of the Insurer and accordingly seeks to modify the judgment and award passed by the Tribunal.
7. The learned counsel appearing for respondent No.1/Insurance Company on the other hand submits that the total compensation awarded by the Tribunal is just and reasonable and no interference is called for. He would further contend that admittedly there is violation of permit condition and therefore, the Tribunal was proper in absolving the liability of the Insurer to pay the compensation. Accordingly, seeks to dismiss the appeal.
8. It is the case of the claimant that while he was proceeding on a two wheeler as a pillion rider, the driver of an auto rickshaw bearing registration No.KA- 42-6879, by driving the said auto rickshaw in a rash and negligent manner, dashed against two wheeler, as a result of which, he suffered injuries. The contention of the learned counsel for the appellant is that the appellant was an agriculturist and also a milk vendor and earning a sum of Rs.15,000/- per month.
Therefore, the income taken at Rs.250/- per day by the Tribunal is on the lower side.
9. The appellant has been examined himself as PW1. Apart from his oral testimony, there is nothing on record to hold that he was having an income of Rs.15,000/- per month. In the facts and circumstances of the case, the income taken by the Tribunal is just and proper.
10. The appellant has suffered the following injuries as per wound certificate – Ex.P6:
1) Lacerated wound over the right foot meds 7x1cm 2) Tenderness over the right hip 3) Tenderness over the right leg The appellant has suffered fracture of the neck of right femur and comminuted fracture distal shaft of femur. The doctor has assessed the physical impairment to the whole body at 16.89%. The Tribunal has taken the said disability while computing the loss of earning by adopting the multiplier ‘17’ which is applicable to the age of the appellant. Hence, the compensation awarded towards loss of income is also just and proper.
11. The Tribunal has awarded a sum of Rs.20,000/- towards pain and suffering. In view of the injuries suffered and the fact that the appellant was an inpatient for 39 days in the hospital and also considering the disability, the compensation awarded under the said head is enhanced to Rs.40,000/-. The compensation of Rs.20,000/- awarded under the head loss of amenities in future life is enhanced to Rs.25,000/-. The compensation awarded under all other heads are just and reasonable and no interference is called for. Hence, the appellant is entitled for an enhanced compensation of Rs.25,000/-.
12. The Tribunal has held that the offending vehicle i.e., auto rickshaw was not having necessary permit and it had gone out of the permit area and therefore, there is violation of permit condition. It is also observed that the same was not disputed by respondent No.2 i.e., owner of the vehicle. The Tribunal has absolved the Insurance Company from paying the compensation and saddled the liability on the insured. However, in view of the decision of the Hon’ble Apex Court in the case of Rani and others v/s. National Insurance Company Limited reported in (2018) 8 SC 492 and Amrit Paul Singh and another vs. Tata AIG General Insurance Company Limited and others reported in AIR 2018 2662, wherein it is held that even in such a case, the compensation determined must be first paid by the Insurer, who could thereafter recover the same from the owner of the offending vehicle. Hence, in the present case, the Insurer is required to pay the compensation amount to the claimants with interest with a liberty to recover the same from the owner. With the aforesaid observation, I pass the following:
ORDER The appeal is allowed in part.
The judgment and award dated 11.02.2015 passed in MVC No.403/2012 on the file of the Senior Civil Judge and MACT and Addl. MACT, Channapattana, is hereby modified.
The appellant/claimant is entitled for an additional compensation of Rs.25,000/- in addition to Rs.4,67,495/- awarded by the Tribunal, along with interest at 6% per annum from the date of petition till the date of payment.
The compensation awarded shall be paid by the respondent No.1-Insurance Company with liberty to recover the same from respondent No.2-owner of the offending vehicle.
snc Sd/- JUDGE