IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 19TH DAY OF MARCH, 2019 BEFORE:
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MISCELLANEOUS FIRST APPEAL No.4952 OF 2010 [MV] BETWEEN Sri Periswamy s/o Madappaan Aged 22 years Vinayakanagara Slum Doddaballapura & 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 Prop: Anitha Lakshmi Motors, Tumkur Tumkur District. ... Respondents [By Sri A N Krishnaswamy, Advocate for R1, Sri J M Umesha Murthy, Advocate for R2) This MFA is filed under Section 173(1) of MV Act against the judgment and award dated 30.1.2009 passed in MVC No.4531/2007 on the file of 14th Additional Judge, Court of Small Causes, Bangalore City, partly allowing the claim petition for compensation and seeking enhancement of compensation.
This MFA coming on for hearing this day, the Court delivered the following:
JUDGMENT This appeal arise out of MVC No.4531/2007, wherein the Tribunal has awarded a total compensation of Rs.5,71,850/- with interest at 8% p.a. to the appellant/claimant, who sustained injuries in the 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. The Tribunal considering the evidence and material on record awarded a total compensation of Rs.5,71,850/- with interest at 6% p.a. from the date of petition till the date of depositing the amount in the Court.
4. The contention of the learned counsel for the appellant is that the income taken by the Tribunal is on the lower side and the total compensation awarded is not commensurate with the injuries sustained by the appellant. According to her, appellant was aged about 19 years and working as a coolie and due to the accidental injuries, he lost one limb, which was amputated above knee and therefore there is 100% disability and accordingly she seeks to enhance the compensation by modifying the judgment and award passed by the Tribunal.
5. 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.
6. According to the appellant, he was aged about 18 years and he was working as a coolie and earning a sum of Rs.6,000/- p.m. The Tribunal has taken the income of the appellant at Rs.3,000/- p.m. Appellant has been examined himself as PW1. Apart from his oral testimony, there is no other corroborative piece of evidence to establish that he was earning a sum of Rs.6,000/- p.m. In the facts and circumstances of the case and considering the year of accident, the income of the appellant is taken as Rs.4,000/- p.m.
7. Appellant has suffered the following injuries as per Ex.P28:
i) Comminuted fracture of right leg with crush injury and loss of skin over mid side of lower half of leg and ankle.
ii) Contusion with abrasion over left forehead 2 x 3 cms.
8. Ex.P30 is the medical referral certificate issued by Janatha Nursing Home, Doddaballapura, which reveals that the appellant was admitted in the said hospital on 13.6.2007 and discharged on 30.6.2007.
9. PW6 is an Orthopedic Surgeon working at Sevabhai Hospital, Bangalore. According to him, the appellant was treated by debridement and later as he developed gas gangrene above knee amputation after four days stump closed. According to the doctor, the injured/appellant cannot perform the routine job and carry weight. The doctor has assessed physical disability at 90% in relation to right lower limb below the hip and 45% in relation to the whole body. Ex.P31-photograph of the appellant discloses amputation of his right leg and deformity in the right hand. Considering the fact that the appellant was a coolie and aged 18 years and there is amputation of right leg, I am of the view that the functional disability of the appellant to the whole body may be taken at 60% as against 45% taken by the Tribunal. The appropriate multiplier applicable to the age of the appellant is 18 and therefore appellant is entitled for a compensation of Rs.5,18,400/- under the head ‘loss of future earning due to disability’. The compensation of Rs.9,000/- awarded towards loss of income during laid up period is enhanced to Rs.12,000/- Considering the nature of injuries and amputation, a sum of Rs.1,00,000/- is awarded as against Rs.70,000/- under the head pain and suffering. A sum of Rs.50,000/- is awarded towards loss of amenities. Sum of Rs.25,000/- awarded under the head loss of expectation of life is maintained. Sum of Rs.50,000/- awarded towards loss of future prospects and marital life is unaltered. Further, the compensation awarded towards medical expenses, traveling expenses and artificial limb are also just and reasonable. The appellant is therefore entitled for a total compensation of Rs.8,51,650/- as against Rs.5,71,850/- awarded by the Tribunal.
10. 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).”
11. 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.
12. Accordingly, the following:
ORDER Appeal is allowed in part. The judgment and award dated 30.1.2009 passed in MVC No.4531/2007 on the file of 14th Additional Judge, Court of Small Causes, Bangalore City, is hereby modified.
Appellant is entitled for a total compensation of Rs.8,51,650/- as against Rs.5,71,850/- awarded by the Tribunal with interest at 6% p.a.
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.
Sd/- JUDGE Bkm.