IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 19TH DAY OF MARCH, 2019 BEFORE:
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MISCELLANEOUS FIRST APPEAL No.4955 OF 2010 [MV] BETWEEN Sri Kantharaju s/o Kempaiah 37 years Mallamgatta village Begur Circle Kunigal Taluk Tumkur District. ... Appellant [By Smt.Bhushani Kumar, Advocate] AND 1. The Manager United India Insurance Co. Ltd., No.10/4, Mitra Towers, Kasturba Road Bangalore – 560 001.
2. Smt.Sharadamma w/o Papanaik Prop: Anitha Lakshmi Motors, Tumkur Tumkur District. ... Respondents [By Sri A N Krishnaswamy, Advocate for R1, R2 – notice d/w v/c/o dtd:19.3.2019) This MFA is filed under Section 173(1) of MV Act against the judgment and award dated 30.1.2009 passed in MVC No.4532/2007 on the file of 14th Additional Judge, Court of Small Causes, Member, MACT, Bangalore, 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 arise out of MVC No.4532/2007, wherein the Tribunal has awarded a total compensation of Rs.2,65,500/- with interest at 8% p.a. to the appellant/claimant, who sustained injuries in the road traffic accident.
2. The case of the appellant is that on 12.06.2007 at about 7.45 p.m., he was traveling in a bus bearing registration No.KA-06/D-3366 as a passenger. The driver of the bus drove the same in a rash and negligent manner near Aralumallige Lake on Nelamangala-Doddaballapura road and lost control, on account of which, the bus fell into the lake and he sustained injuries.
3. The Tribunal considering the evidence and material on record awarded a total compensation of Rs.2,65,500/- with interest at 8% p.a. from the date of petition till the date of depositing the amount in the Court.
4. The contention of the learned counsel for the appellant is that the appellant was working as a mechanic and earning Rs.6,000/- p.m. and therefore the income taken by the Tribunal at Rs.3,000/- p.m. is on the lower side. It is also contended that the total compensation awarded is not commensurate with the injuries sustained by the appellant. Accordingly the learned counsel seeks to enhance the compensation by modifying the judgment and award passed by the Tribunal.
5. On the other hand, Sri. A. N. Krishnaswamy, the learned counsel appearing for Insurance Company would contend that the compensation awarded by the Tribunal is just and reasonable which is based on the evidence and material on record and the same does not call for any interference. It is further contended that there was no valid permit for the offending vehicle as has been held by a co-ordinate Bench of this court in MFA 7284/2009 dated 27.09.2018. Hence, submits that the Insurance Company may be permitted to recover the compensation amount from the respondent-owner of the insured vehicle.
6. According to the appellant, he was working as a mechanic and earning a sum of Rs.6,000/- p.m. He has been examined as PW2. Apart from his oral testimony, there is no other corroborative piece of evidence to prove the income of the appellant. However, considering the facts and circumstances of the case and also the year of accident, the notional income of the appellant is taken at Rs.4,000/- p.m.
7. Appellant has suffered the following injuries as per Ex.P12:
i) Fracture of both bones of left leg ii) Fracture of Zygoma, mandible and maxilla iii) Concussive head injury iv) Cut lacerated wound over the left knee 4 x 1 cms.
8. According to the wound certificate, injuries No.1 and 2 are grievous in nature and injuries No.3 and 4 are simple in nature. Ex.P13 – discharge certificate reveals that appellant was admitted on 12.6.2007 and discharged on 28.6.2007 and he was diagnosed for the said fracture injury.
9. PW6 is an Orthopedic Surgeon. He has examined the appellant and on examination, he has noticed that the appellant was admitted at Parimala Hospital on 12.6.2007 with IP No.602 L and operated for the same under general anaesthesia. Open reduction and internal fixation done with interlocking nail fixed on 13.6.2007. Further examination revealed that the appellant was not able to perform his routine job and day to day work. The permanent disability has been assessed at 65% in relation to left upper limb and 25% in relation to the whole body. Hence the Tribunal has taken the permanent physical functional disability in relation to whole body at 25%. Appellant was aged about 34 years and therefore the appropriate multiplier is 15. Hence, appellant is entitled for a total compensation of Rs.1,80,000/- towards loss of income due to disability as against Rs.1,35,000/- awarded by the Tribunal.
10. The Tribunal has awarded a sum of Rs.10,000/- as global sum under the head loss of income during laid up period and the same is enhanced to Rs.12,000/-. The compensation awarded under the head pain and suffering is enhanced from Rs.30,000/- to Rs.50,000/-. The compensation under the head ‘loss of amenities’ is enhanced from Rs.20,000/- to Rs.30,000/-. The compensation awarded towards loss of expectation of life is just and reasonable.
11. The Tribunal has awarded a global sum of Rs.35,500/- towards medical expenses considering the medical and hospital charges. The same is undisturbed. A sum of Rs.10,000/- awarded towards traveling expenses is also unaltered. A sum of Rs.10,000/- awarded towards future medical expenses for removal of implants is enhanced to Rs.20,000/-. A sum of Rs.10,000/- is awarded towards attendant, food and nourishment charges. Appellant is therefore entitled for a total compensation of Rs.3,62,500/- as against Rs.2,65,500/- awarded by the Tribunal.
12. In view of the judgment of this court passed in MFA No.7284/2009 dated 27.09.2018, arising out of the very same accident, wherein it has been held that the Tribunal could not have awarded higher rate of interest at 8% per annum and the interest rate having been scaled down to 6%, the compensation awarded shall carry interest at 6% per annum. Further, in the aforesaid appeal filed by the Insurance Company, this court has modified the impugned judgment and held that this case is one involving a vehicle which was insured but which lacked permit, as contemplated by the Contract of Insurance. This Court, however, placing reliance on the judgment of the Hon’ble Apex Court in the case of TATA AIG General Insurance Co. Ltd. & others v. Amrit Paul Singh & another (2018 ACJ 1768) modified the judgment and award and held that the insurance company after discharging the award liability, may execute this judgment for recovering the amount from the respondent-owner of the insured vehicle, in terms of the ruling of the Hon’ble Apex Court in the case of National Insurance Company Ltd., v. Challa Upendra Rao ( AIR 2004 SC 517). The relevant paras are extracted hereunder:
“8. The question of fastening of the liability on the insurer even in the absence of permit fell for consideration in the case of TATA AIG General Insurance Co. Ltd. & otheres v. Amrit Paul Singh & another (2018 ACJ 1768), wherein, the Apex Court holding that the absence of permit cannot be equated to a case of absence of a Driving Licence, still upheld the judgment and award made by the MACT fastening the liability on the insurer as affirmed by the High Court, on the Principle of “Pay and Recover”. Although this Court was profitably taken through several provisions of the Act in relation to various aspects of Area Permit and Route Permit the same may not be necessary for disposing of this appeal since its fact matrix lies in a narrow compass.
9. The other contention of the learned Senior Panel Counsel that the MACT could not have awarded higher rate of interest at 8% per annum is sustainable in view of a long line of judgments of this Court wherein normally 6% interest is awarded. In the absence of any special circumstance being pointed out for leaving the beaten track, the interest rate is scaled down to 6%.
10. In the above circumstances, this appeal succeeds in part; the impugned judgment and award are modified to the effect that the appellant-insurer after discharging the award liability, may execute this judgment for recovering the amount from the respondent-owner of the insured vehicle, in terms of the ruling of the Apex Court in National Insurance Company Ltd., v. Challa Upendra Rao (AIR 2004 SC 517).”
13. Since the contentions raised by the appellant– Insurance Company has already been considered and dealt with by this Court in MFA No.7284/2009 disposed of on 27.09.2018, the present appeals are also disposed of in terms of the order passed in the aforesaid MFA.
14. Accordingly, the following:
ORDER Appeal is allowed in part. The judgment and award dated 30.1.2009 passed in MVC No.4532/2007 on the file of 14th Additional Judge, Court of Small Causes, Bangalore City, is hereby modified.
Appellant is entitled for a total compensation of Rs.3,62,500/- as against Rs.2,65,500/- awarded by the Tribunal with interest at 6% p.a.
In view of the judgment of this court passed in MFA No.7284/2009 dated 27.09.2018, the Insurance Company after discharging the award liability may execute the judgment for recovering the amount from owner of the insured vehicle.
The compensation amount shall be deposited by the Insurance Company before the Tribunal within a period of four weeks from the date of receipt of a copy of this Judgment.
Sd/- JUDGE Bkm.