IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF OCTOBER, 2019 BEFORE The Hon’ble Mr.Justice B.M.Shyam Prasad M.F.A.NO.11263 OF 2011 (MV) c/w M.F.A.No.8972 OF 2011 IN M.F.A.NO.11263/2011 BETWEEN:
Sri. N.M.Murali, S/o. late Nanjundappa Aged about 30 years Residing at Matnahalli Village Kolar Taluk & District-563101. ... Appellant (By Sri. N.Gopal Krishna, Advocate) And:
1. Sri. Nagaraj. M S/o. Muniswamy Major in age Residing at Melagani Village Emmenatha Post Mulbagal Taluk Kolar District-563131.
2. The Bajaj Alliance General Insurance Co., Ltd.
TBR Complex New Mission Road Next to Bangalore Stock Exchange Bengaluru-560002.
Rep: by its Manager. ... Respondents (By Sri. A.N.Krishna Swamy, Advocate for R2; Notice to R1 is held sufficient v/o dtd: 13.11.2013) This Miscellaneous First Appeal is filed under Section 173(1) of MV Act against the judgment and award dated:16.06.2011 passed in MVC.No.9770/2008 on the file of the VIII Additional Judge, Member, MACT, Court of Small Causes, Bengaluru, partly allowing the claim petition for compensation and seeking enhancement of compensation.
IN M.F.A.No.8972 OF 2011 BETWEEN:
Bajaj Allianz General Insurance Co. Ltd., # 31, Ground Floor, TBR Tower, I Cross, New Mission Road, Adjacent to Jain College, Bengaluru-560 027. ….Appellant (By Sri. A.N.Krishna Swamy, Advocate) AND:
1. Sri. M. N.Murali, S/o. late Nanjundappa Now aged about 30 years Residing at Matnahalli village Kolar Taluk & District.
2. Sri. Nagaraj. M S/o. Muniswamy Major Residing at #14, Melagani village Emmenatha Post Mulabagal Taluk Kolar District-563131. ….Respondents (By Sri. N.Gopal Krishna, Advocate for R1; Notice to R2-served and unrepresented) This Miscellaneous First Appeal is filed under Section 173(1) of MV Act against the judgment and award dated 16.06.2011 passed in MVC.No.9770/2008 on the file of the VIII Additional Judge, Member, MACT, Court of Small Causes, Bengaluru, awarding a compensation of Rs.2,81,000/- with interest @ 6% per annum (except future medical expenses) from the date of petition till deposit.
These Miscellaneous First appeals are coming on for admission, the Court delivered the following:
Judgment These appeals are filed by the claimant and the Insurer calling in question the judgment and award dated 16.07.2011 in MVC.No.9770/2008 on the file of the Motor Accident Claims Tribunal-V, Court of Small Causes, Bengaluru (for short ‘the Tribunal’). The Insurer has filed its appeal in M.F.A.No.8972/2011 disputing its liability to pay compensation contending that the driver of the vehicle was not duly licenced, and the claimant has filed his appeal in M.F.A.No.11263/2011 seeking enhancement in the compensation.
2. There is no dispute that on 07.11.2008, the claimant was involved in a road accident when Tata ACE goods auto bearing Registration No.KA.07.8046, insured with the appellant, dashed against the claimant who was driving in his motor cycle bearing Registration No.KA.07.Q.2593. The accident was because of the rash and negligent driving by the driver of the goods vehicle. The claimant suffered injuries in the lower abdomen and pelvic area, and he was hospitalized for surgery. The Tribunal, on appreciation of the evidence on record, has partly allowed the claim petition granting a total sum of Rs.2,81,000/- with interest at the rate of 6% per annum (excluding interest on future medical expenses) from the date of the petition till the date of deposit. The Tribunal has awarded a sum of Rs.2,81,000/- under the following heads:-
Towards pain & agony Rs.35,000/- Towards medical expenses Rs.1,80,000/-
Towards loss of income during treatment period Towards loss of amenities and unhappiness Towards future medical expenses Rs.21,000/-
Rs.35,000/-
Rs.10,000/-
TOTAL Rs.2,81,000/-
3. The learned counsel for the Insurer submits that the denial of liability is on ground that the driver of the goods vehicle was not holding a light motor transport vehicle licence but was only holding a light motor non- transport vehicle license. Therefore the driver was not duly licenced the offending vehicle. However, the learned counsel for the Insurance Company does not dispute that the law as of date on the point is the decision of the Hon’ble Supreme Court in the case of Mukund Dewangan V/s Oriental Insurance Company Limited reported in 2017 AIR (SC) 3668, and in terms of this decision, the Insurer cannot deny its liability on the ground that the driver of light motor transport vehicle was holding a light motor non- transport driving licence. In view of the decision of the Hon’ble Supreme Court in the aforesaid case, no interference is called for with the Tribunal’s judgment at the instance of the Insurer. Therefore, the appeal by the Insurer in M.F.A.No.8972/2011 is liable to be dismissed.
4. Insofar as the appeal by the claimant seeking enhancement, the learned counsel for the appellant only contends that the claimant has suffered 20% physical disability which impacts his earning capacity. But, the Tribunal has not granted any amount towards loss of earning capacity. In the light of the evidence on record including the Doctor’s evidence and the undisputed fact that the appellant has undergone surgery, the learned counsel submits that the claimant is entitled for grant of compensation towards loss of future income and that appropriate amount under this head should be assessed taking the loss of functional disability at 20% and the notional income of the claimant, admittedly an agriculturist, as per the schedule evolved for settlement in Lok Adalath. The learned counsel further states that appropriate multiplier would be ‘17’ because the claimant was aged 27 years as of the date of the accident.
5. The learned counsel for the insurer rebuts this argument contending that the claimant has not examined the Doctor who treated him, and the Doctor who has been examined as PW2 did not treat him. As such, the assessment of permanent disability is unbelievable.
6. The undisputed facts are that the appellant met with an accident on 07.11.2008 and suffered injuries which necessitated surgeries. Ex.P7 is the discharge summary issued by M.S.Ramaiah Memorial Hospital. This document is undisputed. It is stated that the claimant was operated for “bladder neck rupture” and for “primary realignment of urethra”. The “fracture of public rami” was managed conservatively. It is also stated that the claimant’s condition as of the date of the discharge was satisfactory. Further, it is undisputed that the claimant was aged 27 years as of the date of the accident and was earning his livelihood as an agriculturist. The functional disability is to be assessed from the nature of the injuries suffered resulting permanent disability and the nature of the vocation. The nature of injuries is undisputed and the Doctor, who is examined as PW.2 has stated that the claimant has suffers 20% permanent disability. The assessment of permanent disability at 20% by this Doctor is because of what he describes as physical disability as well as mental disability. This statement is rather difficult to accept. However, some functional disability resulting from the injuries cannot be disputed.
7. In the facts and circumstance of the case, this Court is of the considered view that the assessment of the functional disability at 10% would be appropriate to arrive and just and reasonable compensation keeping in mind the amount awarded by the Tribunal under the other heads. If the income at Rs.4,500/- per month as per the schedule award for settlement in the Lok Adalath is taken and the multiplier of ‘17’ is taken based on the age of the claimant, the claimant will be entitled for a sum of Rs.91,800/- towards future loss of income. The Tribunal’s judgment and award is modified enhancing the compensation by a sum of Rs.91,800/-. For the foregoing, the following order:
ORDER The appeal filed by the insurer in M.F.A.No.8972/2011 is dismissed, and the appeal filed by the claimant in M.F.A.No.11263/2011 against the judgment and award dated 16.06.2011 in M.V.C.No.9770/2008 on the file of the Motor Accident Claims Tribunal-V, Court of Small Causes, Bengaluru is allowed in part granting enhanced compensation of Rs.91,800/- along with interest at the rate of 6% per annum. The amount in deposit shall be transferred to the *Tribunal.
Sd/- Judge RB *Corrected vide Court order dated 18.12.2019.