IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR.JUSTICE S.G.PANDIT M.F.A.No.10732/2013 C/W M.F.A.No.6263/2013 [MV] M.F.A.No.10732/2013 BETWEEN:
SRI.MYMARAJ @ MAHIMARAJ S/O THIMMARAYAPPA AGED ABOUT 35 YEARS R/AT MAROHALLI VILLAGE NELAMANGALA TALUK BANGALORE RURAL DISTRICT-562123.
...APPELLANT (BY SRI.P SHIVAKUMAR, ADV.) AND:
1. BAJAJ ALLIANZ INSURANCE CO. LTD., NO.31, GROUND FLOOR TBR TOWERS, 1ST CROSS NEW MISSION ROAD NEXT TO BANGALORE STOCK EXCHANGE J C ROAD, BANGALORE-560 027 REP. BY IT’S MANAGER.
2. SRI. M NARASIMHA MURTHY S/O MUNIYAPPA R/AT NO 1355, T BEGUR NEAR ANGANAVADI NELAMANGALA TALUK 562 123.
…RESPONDENTS (BY SMT.H R RENUKA, ADV. FOR R1 R2 – SERVICE H/S V/O DATED 06.01.2016) THIS M.F.A. FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 19.04.2013 PASSED IN MVC NO.8065/2011 ON THE FILE OF THE VII ADDITIONAL SMALL CAUSES JUDGE, MEMBER MACT-3, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
M.F.A.No.6263/2013 BETWEEN:
BAJAJ ALLIANZ GENERAL INSURANCE CO., GROUND FLOOR, NO.31 T B R TOWERS, I CROSS NEW MISSION ROAD NEXT TO BANGALORE STOCK EXCHANGE, J C ROAD BANGALORE BY ITS ASSISTANT VICE PRESIDENT (CLAIMS).
(BY SMT.H R RENUKA, ADV.) AND:
1. MYMARAJ @ MAHIMARAJ S/O THIMMARAYAPPA AGED ABOUT 35 YEARS MAROHALLI, NELAMANGALA TALUK BANGALORE (R) DISTRICT.
...APPELLANT 2. M NARASIMHA MURTHY S/O MUNIYAPPA ADULT NO.1355, T BEGUR NEAR ANAGANAVADI NELAMANGALA TALUK- 562 123.
…RESPONDENTS (BY SRI.P SHIVAKUMAR, ADV. FOR R1 R2- APPEAL DISMISSED V/O DT:14.08.2015) THIS M.F.A. FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 19.04.2013 PASSED IN MVC NO.8065/2011 ON THE FILE OF THE VII ADDITIONAL SMALL CAUSES JUDGE, MEMBER MACT, COURT OF SMALL CAUSES, BANGALORE, AWARDING COMPENSATION OF RS.1,84,500/- WITH INTEREST @ 8% P.A. FROM THE DATE OF PETITION TILL REALIZATION.
THESE M.F.A.s COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T Both the claimant as well as the insurer/Bajaj Allianz Insurance Company Limited are in appeals against the judgment and award dated 19.04.2013 passed in MVC No.8065/2011 on the file of the Motor Accident Claims Tribunal, Bangalore (hereinafter referred to as 'the Tribunal' for short).
2. Insurer is in appeal in MFA No.6263/2013 questioning the saddling of liability on them whereas the claimant is in appeal in MFA No.10732/2013 praying for enhancement of compensation, not being satisfied with the quantum of compensation awarded by the Tribunal.
3. The claim petition was filed under Section 166 of the Motor Vehicles Act, claiming compensation for the accidental injuries suffered in a road traffic accident. It is stated that on 02.12.2011, when the claimant was proceeding as a passenger in an auto rickshaw bearing registration No.KA-52/6021 from Nelamangala to Begur on Bangalore-Tumkur N.H.4 road, driver of the auto rickshaw drove the same in high speed and suddenly applied brake, as a result, the auto turned turtle. Due to the said impact, the claimant sustained grievous injuries. Immediately, he was shifted to J.P.Hospital, Nelamangala wherein he took treatment as inpatient for 4 days. It is stated that the claimant was a driver by avocation and earning Rs.8,000/- p.m. He was aged about 33 years as on the date of accident.
4. On issuance of notice, respondent No.1 insurer appeared before the Tribunal and second respondent remained absent. Respondent No.1 in its statement denied the claim petition averments and further contended that, driver of the auto rickshaw bearing registration No.KA-52/6021 had no valid and effective driving license as on the date of accident. It was also stated that there was no valid permit and Fitness Certificate to the offending vehicle. The claim made is also excessive and exorbitant.
5. The claimant examined himself as P.W.1 and also examined the doctor as P.W.2 apart from marking 27 documents as Ex.P1 to Ex.P27. The respondents examined R.W.1 and R.W.2 apart from marking 6 documents as Ex.R1 to Ex.R6.
6. The Tribunal, appreciating the material on record awarded total compensation of Rs.1,84,500/- with interest at the rate of 8% p.a., from the date of petition till realization, on the following heads:
1. Pain and agony
5. Conveyance, Food and nutrition :: Rs. 8,000/-
6. Disability 6000x12x15x10% :: Rs.1,08,000/-
7. Loss of amenities :: Rs. 10,000/-
Total Rs.1,84,500/-
While awarding the above compensation, the Tribunal assessed the income of the claimant at Rs.6,000/- p.m., and assessed the whole body disability at 10%. The claimant not being satisfied with the quantum of compensation is before this Court in MFA No.10732/2013 whereas the insurer is before this Court in MFA No.6263/2013 aggrieved by saddling the liability on it.
7. Heard the learned counsel for the claimant and insurer. Perused the material on record.
8. Learned counsel for the Insurer would submit that the Tribunal committed an error in saddling the liability on first respondent/insurer and submits that the Tribunal failed to appreciate the fact that the driver of the offending vehicle was not possessing valid and effective driving license as on the date of accident. It is submitted that the driver of the offending auto rickshaw was possessing the Light Motor Vehicle (Non-Transport) license, but he was not possessing Light Motor Vehicle (Transport) license, as such the Tribunal could not have fastened the liability on the insurer as there is violation of policy conditions. Further, with regard to quantum of compensation, learned counsel submits that the quantum of compensation awarded by the Tribunal is just and proper, which needs no interference. Learned counsel further submits that the doctor assessed the whole body disability at 13% whereas the Tribunal has assessed at 10% based on the evidence and medical records, which is proper and correct and needs no interference.
9. Per contra, learned counsel for the claimant would submit that the Tribunal rightly saddled the liability on the first respondent/insurer. It is his submission that the driver of the auto rickshaw had LMV non-transport license, as such, he could drive LMV transport vehicle in view of the decision of Hon'ble Apex Court in the case of MUKUND DEWANGAN v/s ORIENTAL INSURANCE COMPANY LIMITED reported in (2017) 14 SCC 663.
Further, the learned counsel submits that the claimant was working as a driver and was earning more than Rs.8,000/- p.m. But, the Tribunal assessed the income of the claimant at Rs.6,000/- p.m., which is on the lower side. Considering the avocation of the claimant, the Tribunal ought to have assessed the income of the claimant at minimum of Rs.8,000/- p.m. Further, the learned counsel submits that the claimant was aged 33 years as on the date of accident, the correct multiplier would be 16 whereas the Tribunal has adopted the multiplier of 15 which is wholly erroneous. Learned counsel submits that Ex.P6 is wound certificate, Ex.P8- discharge summary, which would indicate the injuries suffered by the claimant and treatment taken for the injuries. The claimant has suffered fracture and crush injury to the right ankle and fracture of malleous. Looking to the injuries suffered, the compensation awarded on the head of loss of amenities is on the lower side. Thus, he prays for enhancement of compensation.
10. On hearing the learned counsel for the parties and on perusal of the material on record, the following points would arise for consideration:
(i) Whether the Tribunal is justified in saddling the liability on the first respondent/Insurer; and (ii) Whether the claimant would be entitled for enhancement of compensation?
11. Answer to both the points is in the affirmative for the following reasons:
The accident occurred on 02.12.2011 involving the auto rickshaw bearing registration No.KA-52/6021 and the accidental injuries suffered by the claimant are not in dispute in this appeal. The insurer is in appeal questioning the saddling of the liability on them. Learned counsel submitted that the driver of the offending vehicle has not possessed the valid and effective driving license as on the date of accident. Ex.R4 is the DL extract of driver of the offending auto rickshaw. Perusal of Ex.R4 would indicate that the driver of the auto rickshaw had LMV (NT) license. The Hon'ble Apex Court has made it clear in the decision of MUKUND DEWANGAN (supra) that a person who holds driving license to drive LMV (NT) can also drive LMV Transport vehicle of the same category. In the instant case, as the driver of the offending auto rickshaw had LMV (NT) to drive the auto rickshaw as well as car, he can drive the LMV (transport) auto rickshaw. In view of the above decision, the contention of the insurer fails and accordingly, the appeal filed by the insurer in MFA No.6263/2013 is dismissed.
12. The claimant contended that the income assessed by the Tribunal at Rs.6,000/- p.m., is on the lower side. He submits that the claimant was working as a driver and was earning Rs.8,000/- p.m. But no material is placed on record to show that the claimant was working as a driver and was earning Rs.8,000/- p.m. The avocation as well as income is not proved as contended by the claimant. But, the notional income assessed by the Tribunal at Rs.6,000/- p.m., is on the lower side. This Court and Lok Adalath, while settling the accident claims of the year 2011, would normally assess notional income of Rs.6,500/- p.m. In the present case also, in the absence of any material to indicate the exact income and avocation of the claimant, it would be appropriate to assess the notional income at Rs.6,500/- p.m.
13. The claimant was aged 33 years as assessed by the Tribunal, but the multiplier adopted is 15, which is not correct. For the age group of 32 to 35 years, the appropriate multiplier to be adopted is 16. Hence, the multiplier 16 is to be taken for the purpose of computation of compensation. Ex.P6 wound certificate, Ex.P8-discharge summary would indicate the injuries suffered by the claimant and treatment taken as inpatient for 4 days. The claimant has suffered fracture and crush injuries to right ankle and fracture of malleous, which are grievous in nature. The Tribunal has awarded Rs.10,000/- on the head of loss of amenities, which is on the lower side. Hence, the claimant would be entitled for a sum of Rs.25,000/- on the head of loss of amenities inclusive of Rs.10,000/- awarded by the Tribunal. Thus, the claimant would be entitled for the following modified compensation:
5. Conveyance, Food and nutrition :: Rs. 8,000.00 6. Loss of amenities :: Rs. 25,000.00 7. Loss of income due to disability:: Rs.1,24,800.00 (6500x12x16x10/100) Total Rs.2,16,800.00 The claimant would be entitled to total compensation of Rs.2,16,800/- as against Rs.1,84,500/- awarded by the Tribunal, with interest at the rate of 6% p.a., from the date of petition till realization. Accordingly, MFA No.10732/2013 filed by the claimant is allowed in part. The judgment and award dated 19.04.2013 passed in MVC No.8065/2011 on the file of the Motor Accident Claims Tribunal, Bangalore is modified to the above extent. The claimant is entitled to enhanced compensation of Rs.32,300/-.
Sd/- JUDGE mpk/-*CT:bms