IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR. JUSTICE B.M. SHYAM PRASAD MISCELLANEOUS FIRST APPEAL NO. 74 OF 2012 (MV) BETWEEN:
SRI. M. NAGARAJ SON OF MUNIKRISHNAPPA AGED ABOUT 22 YEARS RESIDING AT NO.71, CHALLAKERE DODDABANASAVADI POST KALYANANAGAR BENGALURU (BY SRI. JAGADEESH, ADVOCATE SRI.N GOPALKRISHNA, ADVOCATE) AND:
1. THE PRINCIPAL ROYALE CONCORDE INTERNATIONAL SCHOOL NO.2369, 19TH CROSS BSK 2ND STAGE BENGALURU – 560 070.
2. THE ICICI LOMBARD GENERAL INSURANCE COMPANY LIMITED SVR COMPLEX, NO.89 2ND FLOOR, HOSUR ROAD BENGALURU – 560 068.
REPRESENTED BY ITS MANAGER ... APPELLANT ... RESPONDENTS (BY SRI. H. C. VRISHABENDRAIAH, ADVOCATE FOR R2, NOTICE TO R1 HELD SUFFICIENT VIDE ORDER DATED 05.02.2015) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 19.11.2010 PASSED IN MVC NO.8159 OF 2007 ON THE FILE OF PRINCIPAL MACT, COURT OF SMALL CAUSES BENGALURU PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The claimant suffered injuries in an accident on 20.7.2007 when he was assisting the driver of the offending school bus to reverse. The driver was rash and negligent in reversing the offending school bus injuring the claimant who suffered fracture of femur and pubic rami. The claimant was hospitalized with Sathya Hospital, Bangalore, where he underwent surgery on 21.07.2007 for the fracture of left femur, and insofar as fracture of pubic rami, he was treated conservatively. The claimant filed the claim petition in MVC No.8159 OF 2007 on the file of the Principal MACT, and Court of Small Causes, Bengaluru (for short, ‘Tribunal’) for a compensation of `10,00,000/-. The claimant arrayed the owner of the bus and its insurer as respondents.
2. The owner of the of the offending school bus remained ex parte, as it has remained in this appeal, and the insurer of the offending vehicle (referred to as the ‘Insurance Company’) filed its objections denying its liability inter alia asserting that the driver of the offending vehicle did not have a driving license. As such, the jurisdictional Police filed charge sheet against the driver of the offending vehicle not only for offences punishable under the IPC, but also for offences punishable under section 134(b) read with section 3(1) and 181 of the Motor Vehicles Act.
3. The claimant examined himself and the doctor who treated him as P.W.1 and P.W.2 respectively. He marked Exs.P.1 to P.10. The Insurance Company examined one of its officers as R.W.2 and marked Exhibits R.1 to R.5. The exhibits marked on behalf of the Insurance Company included the charge sheet, policy copy, and the investigation report filed by one of its investigators.
4. The Tribunal, upon consideration of the material records, awarded a total sum of `1,12,973/- to the claimant but directed the respondent No.1, the owner of the offending vehicle to pay such compensation while excluding the Insurance Company on the ground that the owner of the vehicle had committed breach of the policy inasmuch as it had permitted the driver, who was not holding a valid driving license, to drive the vehicle.
5. The learned counsel for the claimant, the appellant in this appeal, arguing in support of the appeal canvassed that the Insurance Company cannot avoid its liability only on the assertion that the driver of the vehicle did not hold a valid driving license, and therefore, the Police had filed charge sheet against him even in that regard. The Insurance Company can avoid its liability under Section 149 of the Motor Vehicles Act, only if it is able to discharge the burden of establishing its defense. The Insurance Company can discharge such burden only by placing on record necessary material to establish its defense, or placing on record circumstances from which necessary inference can be drawn in favour of the Insurance Company and against the owner of the vehicle. He relied upon the decision of this court in MFA No. 4289 of 2011 disposed of on 13.1.2016 and MFA No. 11487 of 2011 disposed of on 14.1.2016.
6. As regards the quantum of compensation, the learned counsel for the claimant contended that the doctor’s evidence was categorical inasmuch as he has deposed that the claimant has suffered 42% of disability of the lower limb and the claimant will have to undergo further surgery for removal of implants. Nevertheless, the Tribunal has not awarded any compensation either towards loss of future income or towards future medical expenses. The learned counsel contended that the loss of future income will have to be computed on the basis of the functional disability, which in the facts and circumstances of the case, cannot be below 14% and applying the multiplier of ‘18’ based on the claimant’s age.
7. The learned counsel for the Insurance Company vehemently refuted the submissions on behalf of the learned counsel for the claimant. He contended that the Chief Officer is examined, who has deposed about the jurisdictional police filing a charge sheet against the driver of the offending vehicle for driving the vehicle without a valid and effective driving license. The owner of the vehicle has remained ex parte. These circumstances would justify the conclusion by the Tribunal. He justified that the compensation awarded by the Tribunal is just and reasonable and no enhancement is called for.
8. However, in the facts and circumstances of the case, this Court is of the considered opinion that the claimant will have to succeed both on the ground of Insurance Company being liable to pay compensation and also on the ground of enhancement in the compensation. It is settled that insofar as the liability of an insurance company to a third party, the insurance company can avoid its liability in respect of a third party under Section 149 of the Motor Vehicles Act, 1988 provided it is able to establish breach as contemplated thereunder, and the onus of establishing such breach is on the Insurance company. As regards avoiding liability on the ground that the driver of the offending vehicle did not hold a valid or effective license, it is settled that the insurance company must establish that the owner of such vehicle was either negligent or failed to exercise reasonable care in entrusting the driving of the vehicle to a person without license.
9. The Insurance Company can discharge such burden by placing cogent evidence in support thereof, or at least by placing on record circumstances from where, either negligence or failure to exercise reasonable care can be inferred. The Insurance Company has not even made any effort to either summon the driver of the offending vehicle or place on record the outcome of the criminal proceedings. As such, the Insurance Company cannot avoid its liability.
10. As regards quantum of compensation, the Tribunal has awarded loss of income for a period of four months at the rate of `3,000/- per month in view of the evidence on record that the claimant suffered multiple fractures and had to undergo surgery for implants.
Further, the claimant was also advised post-rest and he was convulsing. However, no amount is awarded towards loss of future income. The doctor has opined that the physical disability is 42% and it is undisputed that the claimant was working at the time of accident as a cleaner which involves strenuous work. Therefore, it has to be concluded that the claimant has suffered permanent disability resulting in functional disability, and in the facts and circumstances of the case, especially evidence by the doctor, functional disability can be reasonably assessed at 14%.
11. The accident is of the year 2007 and the appropriate income, given the fact that the claimant was working as a cleaner, could be taken at `3,500/- per month and such income would be in line with the schedule evolved by consensus of the different insurance companies for settlement in Lok Adalats to attain uniformity in grant of compensation where there is no definite evidence on income of a claimant or injured. The Insurance Company has not placed on record any material to hold that such yardstick cannot be adopted in this case. If loss of future earning and loss during laid up period is computed in terms of these parameters applying the multiplier of ‘18’ given the undisputed age of the claimant, he will be entitled to a total compensation of `1,05,840/- [(Rs.3500x14%)X12x18] towards loss of future earnings. Insofar as loss of income during laid-up period, the claimant will be entitled to an enhancement of `2,000/- as the Tribunal has already awarded a sum of `4000/- towards such loss at the rate of `2500/- per month.
12. In view of the above discussion, the claimant is entitled to receive a total compensation of `2,19,013/- which includes the `1,12,973/- awarded by the Tribunal and `1,07,840/- enhanced in this appeal, from the Insurance Company.
Accordingly, the appeal is allowed in part. The Insurance Company is directed to deposit `2,19,013/-, within six weeks from the date of receipt of a certified copy of the judgment with interest as awarded by the Tribunal. The Insurance Company will not be liable to pay interest for a period of 288 days as the delay in filing appeal is condoned subject to such condition. Further, the Insurance Company, subject to all exceptions in law, may recover the amounts paid in terms of the award from the owner of the offending vehicle.
SD/- JUDGE nv