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.11735 OF 2012 (MV) BETWEEN:
Sri. Mahadevegowda @ Mahadeva, S/o. Late Marigowda, Aged about 38 years, R/at Mavinakere Grama, Bookanakere Hobli, K.R.Pet Taluk, Mandya District. PIN-571 425. …Appellant (By Sri. K.M.Sanath Kumar, Advocate ) AND:
1. A.K. Gopal S/o. Kenchegowda, Aged about 41 years, R/at Anuvinakatte Hally, Kasaba Hobli, K.R.Pet Taluk, Mandya District, Pin-571427.
2. The Divisional Manager United India Insurance Co. Ltd., No.2911, Sunder Arcade, Opp: Subarb Bus Stand, Bengaluru Nanjanagudu Road, Mysuru, Pin-570001. …Respondents (By Sri P.B.Raju, Advocate for R-2, R-1 – served) This MFA is filed under Section 173(1) of Motor Vehicles Act against the Judgment and award dated:4.6.2012, passed in MVC.No.829/2011, on the file of the Presiding Officer, Fast Track Court-II & Member, Addl.MACT, Mysuru, 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 This appeal is filed under Section 173 (1) of the Motor Vehicles Act, 1988, seeking enhancement of the compensation awarded by the learned Presiding Officer, Fast Track Court-II & Addl.M.A.C.T., Mysuru, (hereinafter for brevity referred to as ‘The Tribunal’, for short), by judgment and award dated 04.06.2012, passed in MVC No.829/2011.
2. The summary of the case of the claimant in the Tribunal is that on 3.12.2010, at 12.30 p.m., while he was travelling as a passenger in an autorickshaw bearing registration No.KA-55-810, from Ballenahally towards Somanahally, due to the rash and negligent driving by the said autorickshaw by its driver, it turned turtle on the road, due to which accident, he sustained grievous injuries to left leg, shoulder and other parts of the body. He was treated as inpatient in K.R.Hospital. He has further stated that at the time of the accident, he was earning a sum of `10,000/- per month from agriculture and Dairy business. However, due to permanent disability suffered by him due to the injuries sustained by him in the accident, he is unable to do any of his work. Holding the respondent Nos.1 and 2 as liable to pay him the compensation in their capacity of being the owner and insurer of the alleged offending vehicle, the claimant has claimed compensation of a sum of `15 lakhs from them.
3. Before the Tribunal, the claimant got himself examined as PW-1 and one Dr.Mohan K., as PW-2 and got marked documents from Exs.P-1 to P-14. On behalf of the respondent-Insurance Company, one Sri Narendra Babu, its officer, was examined as RW-1 and documents at Exs.R-1 to R-10 were marked.
4. After analysing the evidence and the materials placed before it, the Tribunal has awarded the compensation under the following heads with the sum shown against them:
5. The Tribunal though awarded compensation for a sum of `90,000/- 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 the driver of the autorickshaw at the time of the accident did not have a valid and effective driving licence. It is against the said judgment and award passed by the Tribunal, the claimant has filed this appeal.
6. 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.
7. 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.
8. Though this appeal is coming on for admission, with the consent from both sides, the matter is taken up for final disposal.
9. Heard the arguments from both sides and perused the materials placed before this court.
10. The learned counsel for the appellant/claimant in his argument submitted that the compensation awarded under all heads are meager and deserves an enhancement, more particularly, he submitted that the compensation awarded towards `loss of income’ and `permanent physical disability’ are all on the lower side. The Tribunal if decided to take the notional income of the claimant, it should have taken the income at `6,500/- per month, whereas, it has taken it at `3,000/- per month. He also submits that the compensation awarded towards `loss of amenities’ is on the lower side. Learned counsel for the appellant further submits that the claimant was aged 37 years as on the date of the accident and at the young age, he has become permanently disabled to do any avocation.
11. Learned counsel for the respondent-Insurance Company in his arguments submitted that though he is not disputing the age of the claimant as on the date of the accident, but, the quantum of compensation awarded by the Tribunal is just and reasonable, as such, it does not warrant any interference at the hands of this Court.
12. From a perusal of the material placed before this Court and by the arguments addressed from both side, it is not in dispute that in the accident, the claimant has sustained fracture of femur of the left leg and he was implanted with plate and screws by conducting surgery. He was inpatient in the hospital for a period of more than fifteen days. The doctor who was examined as PW-2 has opined that the injured had sustained permanent partial disability, which he has assessed at 34% to the particular organ. The Tribunal has considered the same as 10% as applicable to the whole body. At the same time, the Tribunal has taken the income of the injured at `3,000/- per month having observed that he has not produced any documents to show his avocation.
13. In the light of the above, I am of the view that considering the nature of injuries sustained by the claimant, which is a fracture of femur of the left leg, the Tribunal has awarded just compensation of `30,000/- towards `pain and suffering’, which does not warrant any interference.
14. Since the compensation awarded towards medical expenses which is at `8,000/- is also based on the actuals and after considering the medical bills and prescriptions produced by the claimant at Exs.P-7 and P-
8, I do not consider the compensation awarded under the said head deserves any enhancement.
15. The quantum of compensation awarded towards `incidental expenses’ also, in the circumstances of the case, appears to be reasonable.
16. The claimant has claimed that he was an agriculturist and doing Dairy business at the time of the accident. However, due to the injuries sustained by him in the accident, he could not continue his avocation. The Tribunal has accepted the permanent physical disability as alleged by the claimant and assessed it at 10%. However, even in the absence of any document produced by the claimant to establish his alleged income at `10,000/- per month, the Tribunal should have considered the notional income prevailing as in the relevant period. On the other hand, it has taken the notional income of the claimant at `3,000/- per month. The accident has occurred on 3.12.2010. The notional income which the co-ordinate Benches of this Court have taken for the relevant year, which is 2010, is at `5,500/- per month. If the said income at `5,500/- per month is taken into consideration, the claimant is entitled for difference in the compensation awarded towards `loss of income’ at the rate of `2,500/- per month i.e., `2,500/- x 3 = `7,500/-.
17. Towards `permanent physical disability’, the quantum of compensation for which the appellant/claimant is entitled would be at `5,500/- x 12 x 15 x 10/100 =`99,000/-. After deducting `30,000/- awarded by the Tribunal, for the difference amount of `69,000/-, the claimant is entitled to.
18. Towards `loss of amenities in life’, I am of the view that, in the light of the circumstances of the case, the claimant deserves an enhancement by a sum of `5,000/-.
19. 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 enhancement of compensation in a sum of `81,500/- which is in addition to `90,000/- awarded by the Tribunal.
20. The second argument of the learned counsel for the appellant was that the Tribunal has committed an error by exonerating the respondent-Insurance Company from its liability on the ground that as on the date of alleged accident, the driver of the offending vehicle had no valid driving licence and that the autorickshaw had no permit to ply in the area where the accident has occurred. Learned counsel further submits that Ex.P-9 is the driving licence extract which clearly goes to show that the driver of the offending vehicle had a driving licence to drive a non-transport light motor vehicle though he did not possess transport licence for that category. However, in view of judgment of Hon’ble Apex Court in Mukund Dewangan –vs- Oriental Insurance Company Limited, reported in AIR 2017 SC 3668, the possessing of a non-transport driving licence for the same category of vehicle could not be a ground for exonerating the insurer.
The learned counsel for the respondent-Insurance Company fairly submits that in view of Mukund Dewangan’s case (supra), he would not contest on the said aspect.
In Mukund Dewangan’s case (supra), the Hon’ble Apex Court was pleased to hold as below :
“ Para-46(i) ‘Light motor vehicle’ as defined in section 2(21) of the Act would include a transport vehicle as per the weight prescribed in section 2(21) read with section 2(15) and 2(48). Such transport vehicles are not excluded from the definition of the light motor vehicle by virtue of Amendment Act No.54/1994.
(ii) A transport vehicle and omnibus, the gross vehicle weight of either of which does not exceed 7500 kg. would be a light motor vehicle and also motor car or tractor or a road roller, ‘unladen weight’ of which does not exceed 7500 kg. and holder of a driving licence to drive class of “light motor vehicle” as provided in section 10(2)(d) is competent to drive a transport vehicle or omnibus, the gross vehicle weight of which does not exceed 7500 kg. or a motor car or tractor or road-roller, the “unladen weight” of which does not exceed 7500 kg. That is to say, no separate endorsement on the licence is required to drive a transport vehicle of light motor vehicle class as enumerated above. A licence issued under section 10(2)(d) continues to be valid after Amendment Act 54/1994 and 28.03.2001 in the form.”
In view of the above, when it is not in dispute that the driver of the offending vehicle had LMV non-transport licence and was driving a vehicle – LMV transport with unladen weight coming within the prescribed limit, the insurer cannot be exonerated from its liability.
21. Another point on which the insurer was exonerated from its liability is the offending vehicle having no permit to ply at the relevant point of time in the place of the accident. Learned counsel for the appellant relying upon 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, submitted that, in view of the said judgment, the insurer is required to pay the compensation amount, however, he can recover the same from the owner of the vehicle.
22. 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.
23. 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.
24. 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 04.06.2012, passed by the learned Presiding Officer, Fast Track Court-II & Addl.M.A.C.T., Mysuru, in MVC. No.829/2011, is modified to the extent that the compensation awarded at `90,000/- is enhanced by an additional sum of `81,500/-, thus, making the total amount for which the claimant is entitled at `1,71,500/-.
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. 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, be released to him without anticipating any further orders from the Tribunal.
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/