IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF FEBRUARY, 2019 :PRESENT:
THE HON’BLE MR. L. NARAYANA SWAMY, ACTING CHIEF JUSTICE AND THE HON’BLE MR. JUSTICE ASHOK G.NIJAGANNAVAR M.F.A. NO.6194 OF 2012 (MV) BETWEEN SRI MANJU @ MOHANANDA N. S/O SRI D.NARAYANA GOWDA, AGED ABOUT 34 YEARS, R/O C/O. PRAKASH GOWDA, NO.58/1, 2ND MAIN ROAD, SUBBANNA GARDEN, VIJAYANAGAR, BENGALURU – 560 040. … APPELLANT (BY SRI C.R.GOPALASWAMY, ADVOCATE) AND 1. THE NATIONAL INSURANCE CO. LIMITED MANDYA BRANCH, NO.1576, 1ST FLOOR, VISHWESHWARAIAH ROAD, MANDYA – 571 401.
2. SRI NAGESH, S/O SRI PUTTARAJU @ PUTTARAJEGOWDA, AGED ABOUT 34 YEARS, R/O DODDENAHALLI VILLAGE, NAGAMANGALA TALUK, MANDYA DISTRICT, KARNATAKA STATE.
(OWNER OF VEHICLE BEARING REGISTRATION NO.KA-11-3997) …RESPONDENTS (BY SRI O MAHESH, ADVOCATE FOR R1;
NOTICE TO R.2 SERVED BUT UNREPRESENTED) THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:24.09.2011 PASSED IN MVC NO.740/2009 ON THE FILE OF THE X ADDITIONAL JUDGE, AND MEMBER, MACT, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION AND ETC.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, ACTING CHIEF JUSTICE DELIVERED THE FOLLOWING:
J U D G M E N T This appeal is by the claimant being dissatisfied with the judgment and award dated 24.09.2011 passed by the MACT, Bengaluru (SCCH-16) (hereinafter referred to as ‘Tribunal’ for short) in M.V.C No.740/2009 seeking enhancement of compensation and also to fasten the liability on the insurer.
2. The brief facts leading to the case are that, on 06.02.2008 at about 05.30 p.m., the appellant and one Raju were traveling in a Taxi Fiat Palio Car bearing Registration No.KA-11-3997 from Nelamangala to Belluru after completion of their personal work. On the way near Doddajetaka Gate, Tumkur-Mysore Road at about 5.30 p.m., the driver of the said vehicle drove the same in a rash and negligent manner and had lost control over the said vehicle and caused accident. Due to the said impact, the appellant and one Raju fell down and sustained fatal injuries. Immediately, the appellant was shifted to Adichunchanagiri Institute of Medical Science, Bellur. Thereafter, on the advice of the doctor, the appellant was shifted to Kempegowda Institute of Medical Science, Bengaluru and treated as an inpatient and thereafter, he was shifted to Hosmat Hospital, Bengaluru for orthopedic treatment and then, he was shifted to Bharathi Nursing Home, Bengaluru and treated as inpatient. Again, he was admitted to St.John’s Hospital for physiotherapy treatment and again, he was admitted to S.D.M.Ayurvedic Hospital and took necessary treatment. On account of the injuries sustained in the road traffic accident, the appellant filed a claim petition under Section 166 of M.V. Act., before the Tribunal against the respondents claiming compensation. The Injured has suffered grievous injuries and he made a claim petition and Tribunal has assessed the compensation. Appellant is seeking for enhancement. The liability is fastened on owner for the reason, as on the date of accident, the driver was possessing license of Light Motor Vehicle, but he was not possessing Driving License for Transport Vehicle and also endorsement. The learned counsel for the appellant submits that injured was traveling in the vehicle and the driver was in possession of the Driving License of Transport Vehicle. As per the judgment of the Hon’ble Supreme Court in the case of Mukund Dewangan Vs. Oriental Insurance Company Limited, reported in AIR 2017 SC 3668, where it has been held that possession of Driving License of Light Motor Vehicle is sufficient to drive a Transport Vehicle. Under such circumstances, in view of the said judgment, the liability is fastened on the insurer and to that extent, it is to be modified. Further, it is submitted that income assessed is on the lower side. On these two grounds, the appeal is filed.
3. As against this, the learned Counsel appearing for 1st respondent – Insurance Company, inter-alia contended that the Tribunal was justified in awarding reasonable compensation and Mukund Dewangan’s case cannot be applicable to the present appeal because as on the date of accident, the license to drive Transport vehicle was also expired. It was renewed after the accident. Under these circumstances, rightly liability is fastened on the owner and the learned counsel submitted that what has been awarded is just and proper.
4. Heard learned counsel for both parties and we have gone through the Lower Court Records.
5. In respect of liability, it has been fastened on the owner. As per the judgment in Mukund Dewangan Vs. Oriental Insurance Company Limited, in para Nos.60.1 and 60.2, where it has been held that license to drive the Light Motor Vehicle, it is sufficient to drive Transport Vehicle and under these circumstances, liability is to be fastened on the Insurer and also facts of the case is that as on the date of accident, driver was having Light Motor Vehicle license and it was valid up to 12.12.2024 and it was granted on 13.12.2004. The accident was occurred on 06.02.2008. We could safely hold that as on the date of accident, the driver was in possession of valid driving license. The driver was also having the driving license to drive Transport Vehicle, but it was expired as on the date of accident. No matter, where Transport Vehicle License is expired, but the license to drive Light Motor Vehicle is sufficient in view of the judgment of the Supreme Court, referred to above.
6. In respect of enhancement, learned counsel submitted that as per the evidence of P.W.2 and also Ex.P.26 – Recent Examination Report, Ex.P.27 – MRI films 9 in Nos, Ex.P.28-X-ray film and Ex.P.29 – Discharge summary issued by KIMS and on submission of the learned counsel for the appellant and also in the light of the discussion, the Injured has suffered posttraumatic paraplegia and further evidence of P.W.2 that there is a total loss of power in both lower limbs and there is total loss of sensation below the xiphi strnum. There is no bladder bowel control and the patient is on self-catheterization every 3-4 hours. He has been advised and trained to care of the back and pressure points in order to avoid pressure sores. The extent of permanent disability is 100% for the whole body. P.W.2 further has produced case sheet as per Ex.P.25, recent examination report as per Ex.P.26. In view of the evidence of P.W.2 and also P.W.1, it is also brought to the notice of the Court, the Tribunal has taken the disability at 100%. The income of the injured is assessed only at Rs.5,000/- per month as against the claimed income of Rs.9,000/-. The injured was aged about 31 years as per SSLC Certificate. Under these circumstances, the extent of permanent disability 100% is to be taken and income is to be assessed at Rs.9,000/- per month as he is also a Gram Panchayath Member and an Agriculturist. Under these circumstances, income of the claimant at Rs.9,000/- is to be taken. The calculation would be as under;
Compensation towards pain and suffering.
Compensation towards medical expenses.
Compensation towards loss of income during laid up period.
Compensation towards loss of amenities in life.
Compensation towards loss of income (Rs.9,000x12x16) Compensation towards attendant charges, food and nourishment and conveyance charges. (Rs.3,000x12x16) Rs.1,50,000-00 Rs.2,32,300-00 Rs.15,000-00 Rs.50,000-00 Rs.17,28,000-00 Rs.5,76,000-00 Compensation towards permanent disability Rs.10,000-00 Total: Rs.27,17,000-00 7. For the foregoing reasons, the instant appeal filed by the appellant is allowed in part. The impugned judgment and award dated 24.09.2011 passed in M.V.C No.740/2009 on the file of the MACT, Bengaluru (SCCH-16) is hereby modified to the extent stated herein above. After compensation is credited to the account of the injured, 75% of the compensation shall be kept in the Fixed Deposit and balance shall be released in favour of the appellant.
8. The 1st respondent-Insurer is directed to deposit the compensation of Rs.27,17,000/- with interest at 8% p.a. from the date of petition till the date of realization, within a period of three weeks from the date of receipt of a copy of this judgment. The appellant is entitled to withdraw periodical interest.
9. Liberty is reserved to the appellant to forward the bills and any further medical expenses for the purpose of re-imbursement, which shall be considered by the Insurance Company.
Draw the award, accordingly.
Sd/-
ACTING CHIEF JUSTICE Sd/- JUDGE NBM