IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 20TH DAY OF MARCH, 2019 BEFORE THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MISCELLANEOUS FIRST APPEAL NO.4953/2010 (MV) Between:
Sri.Nanjappaji Urs, S/o Nanjappaji Urs, Aged 50 years, Hosahalli, Shathnur Hobli, Kanakapura Taluk, Bangalore Rural District. ... Appellant (By Smt. Bhushani Kumar, Advocate) And:
1. The Manager, United India Insurance Co. Ltd., No.10/4, Mitra Towers, Kasturba Road, Bangalore – 560 001.
2. Smt.Sharadamma, W/o Papanaik, Major in age, Prop: Anitha Lakshmi Motors, Tumkur, Tumkur District. ... Respondents (By Sri.A.N.Krishna Swamy, Adv., for R1; Sri.J.M.Umesha Murthy, Adv., for R2) This Miscellaneous First Appeal is filed under Section 173(1) of MV Act, against the Judgment and award dated 30.01.2009 passed in MVC No.5891/2007 on the file of 14th Additional Judge, Court of Small Causes, Member, MACT, Bangalore, partly allowing the claim petition for compensation and seeking enhancement of compensation.
This Appeal is coming on for Hearing this day, the Court delivered the following:
J U D G M E N T This appeal is filed by the claimant seeking enhancement of compensation awarded by the Tribunal in MVC No.5891/2007 on the file of Court of Small Causes, Bangalore City. The Tribunal has awarded a total compensation of Rs.4,28,500/- along with interest at 8% per annum for the injuries sustained by the appellant in a road traffic accident.
2. The case of the appellant is that on 12.06.2007 at about 7.45 p.m., he was traveling in a bus bearing registration No.KA-06/D-3366 as a passenger. The driver of the bus drove the same in a rash and negligent manner near Aralumallige Lake on Nelamangala-Doddaballapura road and lost control, on account of which, the bus fell into the lake and he sustained injuries.
3. A total compensation of Rs.8,00,000/- was sought by the appellant before the Tribunal. The Tribunal after considering the evidence and material on record, awarded a total compensation of Rs.4,28,500/- along with interest at 8% per annum.
4. I have heard Smt. Bhushani Kumar, the learned counsel for the appellant and Sri. A.N. Krishnaswamy, learned counsel for respondent-Insurance Company.
5. It is the contention of the learned counsel for the appellant that the injured was doing business in coconut and earning a sum of Rs.300/- per day. Therefore, submits that the income of Rs.3000/- per month taken by the Tribunal is on a lower side. It is also contended that the injured has suffered grievous injuries and there is amputation of his left leg below knee with 100% disability and therefore, total compensation awarded by the Tribunal is not commensurate with the injuries sustained by the appellant. Accordingly, she seeks for enhancement of compensation by modifying the judgment and award.
6. On the other hand, Sri. A. N. Krishnaswamy, the learned counsel appearing for Insurance Company would contend that the compensation awarded by the Tribunal is just and reasonable which is based on the evidence and material on record and the same does not call for any interference. It is further contended that there was no valid permit for the offending vehicle as has been held by a co-ordinate Bench of this court in MFA 7284/2009 dated 27.09.2018. Hence, submits that the Insurance Company may be permitted to recover the compensation amount from the respondent- owner of the insured vehicle.
7. According to the claimant, he was doing coconut vending business and was earning Rs.300/- per day. The injured has been examined as PW.8.
Apart from his oral testimony, there is no other satisfactory evidence to hold that he was earning a sum of Rs.300/- per day. However, considering the year of accident and in the facts and circumstances of the case, a sum of Rs.4,000/- is taken as the notional income of the appellant as against Rs.3,000/- taken by the Tribunal.
8. As per Ex.P.50 – wound certificate, the appellant has sustained the following injuries:
a) Crush injury over left leg with both bone fracture along with skin loss over the posterior medial surface.
b) Abrasions over the left elbow 2 x 3 inch posterior.
Ex.P.51 – Discharge Certificate reveals that the appellant was admitted at Janatha Nursing Home, Doddaballapura on 12.06.2007 and discharged on 30.06.2007. He was diagnosed for the said fracture injury in the said Hospital.
9. PW.6- Dr. Mohan is the Orthopaedic Surgeon. He has stated that on examination of the injured-appellant, he noticed injuries as stated in the wound certificate. He was treated with wound debridement and POP slab. As he developed gangrene below knee, amputation was performed on 16.06.2007. He has stated that as the patient was a labourer, he cannot perform his routine job and day- to-day work. He has assessed the permanent physical disability at 85% in relation to left lower limb and at 40-45% in relation to whole body.
10. The evidence on record goes to show that the appellant has undergone amputation of left leg below the knee. Considering the avocation of the appellant, I deem it proper to assess the permanent physical disability to the whole body at 50%. The appellant was aged about 47 years and therefore the multiplier applicable is ‘13’. The appellant is therefore, entitled to a sum of Rs.3,12,000/- (4,000 x 12 x 13 x 50%) towards ‘loss of future earnings due to disability’ as against Rs.1,87,200/- awarded by the Tribunal. A sum of Rs.20,000/- is awarded under the head ‘loss of income during laid-up period’. Considering the nature of injuries and disability suffered, the compensation awarded under the head ‘pain and sufferings’ is enhanced from Rs.70,000/- to Rs.1,00,000/-. The compensation awarded under the head ‘loss of amenities’ is enhanced from Rs.30,000/- to Rs.50,000/-. A sum of Rs.10,000/- is awarded towards ‘nutritious food and attendant charges’. The compensation awarded under other heads are just and reasonable. The appellant is therefore entitled to a total compensation of Rs.6,23,300/- as against Rs.4,28,500/- awarded by the Tribunal.
11. In view of the judgment of this court passed in MFA No.7284/2009 dated 27.09.2018, arising out of the very same accident, wherein it has been held that the Tribunal could not have awarded higher rate of interest at 8% per annum and the interest rate having been scaled down to 6%, the compensation awarded shall carry interest at 6% per annum. Further, in the aforesaid appeal filed by the Insurance Company, this court has modified the impugned judgment and held that this case is one involving a vehicle which was insured but which lacked permit, as contemplated by the Contract of Insurance. This Court, however, placing reliance on the judgment of the Hon’ble Apex Court in the case of TATA AIG General Insurance Co. Ltd. & others v. Amrit Paul Singh & another (2018 ACJ 1768) modified the judgment and award and held that the insurance company after discharging the award liability, may execute this judgment for recovering the amount from the respondent-owner of the insured vehicle, in terms of the ruling of the Hon’ble Apex Court in the case of National Insurance Company Ltd., v. Challa Upendra Rao ( AIR 2004 SC 517). The relevant paras are extracted hereunder:
“8. The question of fastening of the liability on the insurer even in the absence of permit fell for consideration in the case of TATA AIG General Insurance Co. Ltd. & otheres v. Amrit Paul Singh & another (2018 ACJ 1768), wherein, the Apex Court holding that the absence of permit cannot be equated to a case of absence of a Driving Licence, still upheld the judgment and award made by the MACT fastening the liability on the insurer as affirmed by the High Court, on the Principle of “Pay and Recover”. Although this Court was profitably taken through several provisions of the Act in relation to various aspects of Area Permit and Route Permit the same may not be necessary for disposing of this appeal since its fact matrix lies in a narrow compass.
9. The other contention of the learned Senior Panel Counsel that the MACT could not have awarded higher rate of interest at 8% per annum is sustainable in view of a long line of judgments of this Court wherein normally 6% interest is awarded. In the absence of any special circumstance being pointed out for leaving the beaten track, the interest rate is scaled down to 6%.
10. In the above circumstances, this appeal succeeds in part; the impugned judgment and award are modified to the effect that the appellant-insurer after discharging the award liability, may execute this judgment for recovering the amount from the respondent-owner of the insured vehicle, in terms of the ruling of the Apex Court in National Insurance Company Ltd., v. Challa Upendra Rao (AIR 2004 SC 517).”
12. Since the contentions raised by the appellant–Insurance Company has already been considered and dealt with by this Court in MFA No.7284/2009 disposed of on 27.09.2018, the present appeals are also disposed of in terms of the order passed in the aforesaid MFA.
13. Accordingly, the following:
ORDER The appeal is allowed in part. The judgment and award dated 30.01.2009 on the file of MACT, Court of Small Causes, Bangalore in MVC No.5891/2007 is hereby modified. The appellant is entitled for a total compensation of Rs.6,23,300/- as against Rs.4,28,500/- awarded by the Tribunal with interest at 6% per annum.
In view of the judgment of this court passed in MFA No.7284/2009 dated 27.09.2018, the Insurance Company after discharging the award liability may execute the judgment for recovering the amount from owner of the insured vehicle.
The compensation amount shall be deposited by the Insurance Company before the Tribunal within a period of four weeks from the date of receipt of a copy of this Judgment.
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Sd/- JUDGE