IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF JULY, 2019 BEFORE THE HON' BLE MR. JUSTICE K.SOMASHEKAR MFA NO.4106 OF 2014 (MV) BETWEEN SRI. MANOJ A.
AGED ABOUT 36 YEARS S/O LATE CHANDRASEKHARAN R/AT 163, ‘A’ BLOCK 2ND CROSS ROAD AECS LAYOUT KUNDALAHALLI BENGALURU – 560 037 ... APPELLANT (BY SRI.K. T. GURUDEV PRASAD, ADV.) AND 1. SONY TRANSPORT SOLUTION THE GENERAL MANAGER NO.434, 16TH CROSS, 5TH MAIN 6TH SECTOR, H.S.R. LAYOUT BENGALURU – 560 034 2. THE MANAGER ICICI LOMBARD GENERAL INSURANCE CO. LTD. REGIONAL OFFICE NO.89, 2ND FLOOR SVR COMPLEX HOSUR MAIN ROAD MADIVALA BENGALURU – 560 068 ... RESPONDENTS (BY SRI. B. C. SHIVARAME GOWDA, ADV., FOR R2;
V.O.D 26.04.2019 –NOTICE TO R1 HELD SUFFICIENT) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 26.03.2014 PASSED IN MVC NO.4186/2010 ON THE FILE OF THE ADDITIONAL JUDGE, MAYOHALL UNIT, BENGALURU, 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 Though this appeal is listed for admission, with the consent of learned counsel on both side, the matter is taken up for final disposal.
2. This appeal is filed by the appellant/claimant challenging the judgment and award dated 26.03.2014 rendered by the Member, MACT, Bangalore in MVC No.4186/2010, whereby compensation of Rs.4,69,350/- with interest @ 6% p.a. is awarded.
3. It is evident in the claim petition that on 24.05.2010 at about 1.45 p.m., when the claimant was walking on the extreme left side of Kundalahalli Main Road by carefully observing the traffic rules and regulations, near Nilgiris, at that time suddenly the driver of the car bearing Regn.No.KA-01-D-7408, driven by its driver in a rash and negligent manner, endangering to human life, without observing any traffic rules, dashed against the claimant from behind and caused accident. Due to the said impact, the claimant fell down and sustained grievous injuries. Immediately, thereafter, the claimant was shifted to Vydehi Hospital wherein he took treatment as an inpatient from 24.05.2010 to 02.06.2010. He has incurred huge medical expenses and due to the accidental injuries, he cannot do his work as earlier and the same has resulted in loss of earning capacity and he has been put to great financial hardship. On these grounds, the claim petition was filed before the Tribunal seeking compensation.
4. After service of notice, at the first instance, both the respondents remained absent and were placed exparte, but later on respondent no.2 entered appearance through its counsel and filed objection statement denying the petition averments and sought for dismissal of the claim petition.
5. Based upon the pleadings of the parties, the Tribunal framed the issues for consideration. In order to substantiate his case, the petitioner got himself examined as PW.1 and got marked documents as per Exs.P1 to P25. On behalf of respondents, RW.1 was examined and documents as per Exs.R1 to R7 were got marked. The Tribunal, after hearing arguments advanced by learned counsel for the parties and on evaluation of both oral and documentary evidence on record, rendered the impugned judgment, awarding compensation of Rs.4,69,350/- with interest @ 6% p.a. from the date of petition till payment. Respondent No.1 being the owner of the offending vehicle was directed to deposit the compensation amount and the petition against respondent No.2 – insurer came to be dismissed. Hence, this appeal by the appellant/claimant on various amongst other grounds.
6. Learned counsel for the appellant contends that the compensation awarded by the Tribunal towards pain and suffering is on lower side as against the nature of injuries of sustained and treatment taken by the claimant. He further contends that the Tribunal has awarded less compensation towards medical expenses and loss of amenities in life. The Tribunal has failed to award proper compensation towards conveyance, nourishment charges though the petitioner was in hospital as an inpatient for considerable period. Further, the compensation awarded towards loss of income during the period of treatment is also on lower side. It is further contended that the Tribunal without proper appreciation of the documentary and oral evidence has exonerated liability on the insurance company only on the ground that the driver of the offending vehicle had licence to drive LMV only and a the time of accident he was driving the transport vehicle, whereas, the evidence on record clearly shows that the driver of the vehicle had driving licence. On all these grounds, learned counsel for the appellant seeks for enhancement of compensation under the above heads by allowing the appeal.
7. Per contra, learned counsel for the respondent – insurance company contends that the driver of the offending car did not possess valid and effective driving licence which is in contravention of the policy condition and also Motor Vehicle Act. He denies the sustenance of injuries by the petitioner in the alleged accident and he also denies the age, occupation, salary and amount spent towards medical expenses, conveyance and nourishment and also sustaining of permanent disability on account of the accident. He contends that the alleged accident occurred on account of negligent act of the petitioner who was walking on the middle of the road without observing traffic rules. He further contends that as owner of the vehicle willfully entrusted the vehicle, knowing fully well that the driver of the offending vehicle did not had valid and effective driving licence to driver the vehicle, the Tribunal has rightly fastened the liability on the owner of the vehicle. Further, the Tribunal on appreciation of entire oral and documentary evidence available on record has awarded just and fair compensation and it does not call for interference of this Court and accordingly, sought for dismissal of the appeal.
8. In the back drop of the contentions as taken by learned counsel for the appellant and countered by learned counsel for the respondent – insurance company, it is relevant to state that there is no dispute that claimant sustained injuries in a road traffic accident due to the actionable negligence on the part of the driver of the offending Car bearing Regn.No.KA-01-D-7408. PW.1 in support of his oral evidence has produced FIR with complaint, sketch, spot panchanama, wound certificate, discharge summary, IMV report, charge sheet, MRI report and CT scan reports, which are marked at Exs.P1 to P10 respectively.
9. The oral evidence of petitioner and documents coupled with Ex.P7 – wound certificate reveals that he has sustained injuries such as lacerated cut wound present on right side of back middling size 8 x 5 and abrasion over the scalp 3 x 4 cm right frontal region, laceration 1 cm horizontal on back right side, multiple abrasion on left button and left lasin, CT plame brain bleed in left cerebellar region, abrasion on right shoulder over dorsum of left and right foot, fracture of right clavicular of rib present on X-ray. Doctor has opined that injury Nos.2, 3 and 4 are simple in nature and injury Nos.5 and 6 are grievous in nature. Considering this aspect, the Tribunal has awarded a sum of Rs.50,000/- towards pain and suffering. But having regard to the gravity of injuries sustained by the petitioner and the treatment taken by him, the same appears to be on lower side. Hence, I deem it appropriate to award another sum of Rs.10,000/- under this head.
10. The Tribunal has awarded Rs.8,100/- towards attendant, conveyance and nourishment charges. But as per Ex.P8 – Discharge summary of Vydehi Hospital, the petitioner has taken treatment as an inpatient from 24.05.2010 to 02.06.2010 for a period of 9 days and the injuries sustained by him are grievous in nature. Considering this aspect, it is just and proper to award another of sum of Rs.10,000/- towards incidental expenses.
11. Further, the compensation of Rs.10,000/- awarded by the Tribunal towards loss of amenities appears to be on lower side, as the petitioner had met with an accident at the age of 32 years and working as Civil Engineer at Hastic International Co., Ltd., at Dubai and was earning a AAD Rs.25,000/- which if it is converted to Indian currency his salary would be Rs.3,06,250/- per month as per Ex.P11. On account of the accident, he has to suffer disappointment, frustration and discomfort for the rest of his life. Therefore, in the light of the above, I deem it just and appropriate to award another sum of Rs.40,000/- in addition to what has been awarded by the Tribunal towards loss of amenities. However, the compensation awarded by the Tribunal under other heads appears to be just and reasonable and I do not find any justifiable ground to interfere with the same. Thus, in all, the appellant/claimant is entitled for enhanced compensation of Rs.60,000/- in addition to what has been awarded by the Tribunal.
12. The Tribunal while awarding compensation under different heads has saddled the liability on the owner of the offending vehicle on the ground that the driver of the offending vehicle had no valid and effective driving licence to drive the same. The driver of offending vehicle had a licence to drive non-transport vehicle, but he was driving a transport vehicle without having necessary endorsement in the Driving Licence. There is violation of policy conditions. Therefore, the insurer is not liable to indemnify the owner. However, the said issue has been dealt with by the Apex Court in the case of Mukund Dewangan Vs. Oriental Insurance Co.Ltd., (2017) 14 SCC 663 wherein it is held that the absence of transport endorsement per se cannot be a ground to absolve the insurer from the award liability and the Tribunal could not have let the insurer go free even in the absence of transport endorsement on the driving licence of the driver of the offending vehicle. Therefore, the issue is no more res integra. The present case is clearly covered by the judgment of Mukund Dewangan’s case (supra). Hence, the entire liability has to be fastened on the respondent – insurance company.
For the aforesaid reasons and findings, I proceed to pass the following:
ORDER Appeal is allowed in part. Appellant/claimant is entitled for enhanced compensation of Rs.60,000/- in addition to what has been awarded by the Tribunal. The impugned judgment and award rendered by the Tribunal in MVC No.4186/2010 dated 26.03.2014 is modified accordingly.
The liability saddled on the owner of offending vehicle is set aside and the entire liability is fastened on second Respondent – ICICI Lombard General Insurance Co. Ltd. in view of ratio of reliance in Mukund Dewangan’s case stated supra.
The respondent - Insurance Company shall deposit the entire compensation including the compensation enhanced by this court, along with interest accrued, within a period of six weeks from the date of receipt of copy of this judgment and on such deposit, the same shall be disbursed to the claimant, on proper identification.
Office to draw the decree accordingly.
Sd/- JUDGE DKB