IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF AUGUST, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT M.F.A.No.1745 OF 2014 (MV) BETWEEN SRI. RAJANNA L G S/O GANGAMUNIYAPPA AGED ABOUT 41 YEARS R/A LAKKENAHALLI VILLAGE SONDEKOPPA POST DASANAPURA HOBLI BANGALORE NORTH TALUK BANGALORE DISTRICT. ... APPELLANT (BY SRI. KALYAN R, ADVOCATE) AND 1. N VENKATESH S/O NARASEGOWDA AGED MAJOR R/A NO.14, LOHIT NAGARA NELAMANGALA TOWN BANGALORE RURAL DISTRICT 2. THE DIVISIONAL MANAGER UNITED INDIA INSURANCE CO. LTD., DO. 5, CKN CHAMBERS NO.143/144, 1ST FLOOR, 1ST MAIN ROAD SHESHADRIPURAM BANGALORE-560024. ... RESPONDENTS (BY SRI. K N SRINIVASA, ADVOCATE FOR R2 R1-SERVED UNREPRESENTED) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DATED: 3.8.2013 PASSED IN MVC NO.1732/2011 ON THE FILE OF THE MEMBER, PRL. MACT, COURT OF SMALL CAUSES, BANGALORE, (SCCH.No.1), 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 The appellant is in appeal under Section 173(1) of the Motor Vehicles Act, not being satisfied with the quantum of compensation awarded as well as saddling liability on respondent No.1-owner of the vehicle under judgment and award dated 03/08/2013 in M.V.C.No.1732/2011 on the file of the Member, PRL. MACT, Court of Small Causes, Bangalore (SCCH No.1).
2. The claimant filed petition under Section 166 of the Motor Vehicles Act, 1989, claiming compensation for the accidental injuries sustained by him in a road traffic accident that occurred on 07-2-2011. It is stated that when the claimant was travelling as a pillion rider in Hero Honda Motor Cycle bearing Reg.No.KA-02-EN-9427, a TATA ACE goods vehicle bearing Reg.No.KA-52-3515 being driven by its driver came from opposite side in a rash and negligent manner and dashed against the motorcycle, as a result the claimant fell down and sustained grievous injuries. It is further stated that the claimant was a coolie and an agriculturist, who was earning Rs.6,500/- per month and as on the date of accident he was aged 35 years.
3. On issuance of notice, respondent No.2-Insurance Company appeared before the Tribunal and filed the counter statement contending that the accident occurred due to the rash and negligent driving of the motorcycle by its rider and not due to driving of the TATA ACE goods vehicle by its driver. Further contended that the driver of the offending vehicle was not holding a valid and effective driving license to drive the said vehicle as on the date of accident. Hence, prayed for dismissal of the claim petition.
4. The claimant examined himself as PW-1 and PW-2 Doctor and got marked documents Ex.P-1 to Ex.P-14. Respondent No.2-Insurance Company examined RW-1 and marked documents Ex.R-1 & 2.
5. The Tribunal on assessment of the entire material on record, awarded total compensation of Rs.1,37,327/- with interest at the rate of 6% per annum, saddling liability on respondent No.1-owner of the vehicle on the ground that the driver of the offending vehicle had no valid driving license to drive the transport vehicle, even though he had LMV-NT license. The Tribunal awarded compensation on the following heads:
Amount in (Rs.) 1. Injury, pain and suffering 10,000 2. Future loss of earning 81,000
The claimant not being satisfied with the quantum of compensation awarded by the Tribunal and also aggrieved by the saddling of liability on respondent No.1-owner of the vehicle is before this Court in this appeal.
6. Heard the learned counsel for the appellant and learned counsel for respondent No.2-Insurance Company. Perused the lower court records.
7. Learned counsel for the appellant submits that the Tribunal committed an error in saddling liability on respondent No.1-owner of the vehicle. He further submits that the driver of the offending vehicle i.e., TATA ACE goods vehicle bearing Reg.No.KA-52-3515 had license to drive light motor vehicles but it was not endorsed to drive transport vehicles. Ex.R-1 is Driving license Extract produced by the respondents, which indicates that the driver of the offending vehicle had LMV-NT license. The Hon’ble Supreme Court in the case of MUKUND DEWANGAN Vs. ORIENTAL INSURANCE CO. LTD., reported in (2017) 14 SCC 663, has held that the driver possessing driving license to drive light motor vehicle-NT could also drive transport vehicle of light motor vehicle category. In the said circumstances, the saddling of liability on respondent No.1 is to be modified and the liability to be saddled on respondent No.2. It is submitted that the income of Rs.4,500/- assessed by the Tribunal is on the lower side and compensation awarded on various heads are also on lower side compared to injury suffered and hospitalization. Thus, prayed for enhancement of compensation.
8. Per contra, learned counsel for respondent No.2- Insurance Company submits that the compensation awarded by the Tribunal is just and proper and needs no interference by this Court with the judgment and award.
9. The accident is of the year 2011. The income taken by the Tribunal for determining ‘Future loss of earning capacity due to disability’ is Rs.4,500/- per month, which is on the lower side. This Court and the Lok Adalath while determining the compensation in Motor Vehicles Accident cases would take notional income for the accidents of the year 2011 at Rs.6,500/- per month. In this case also in the absence of any material to indicate the exact income of the claimant, I deem it appropriate to take Rs.6,500/- per month as notional income of the claimant for determination of the compensation. The Tribunal looking into the injuries suffered and evidence of PW.2 Doctor has rightly assessed the disability at 10% to the whole body which needs no interference. Thus, the claimant would be entitled for modified compensation on the head of ‘Future loss of earning capacity due to disability’ as Rs.6500x12x16x10/100=1,24,800/- as against Rs.81,000/-.
10. The claimant has suffered fracture of base 4th and 5th metacarpal bone left hand with ED to little finger injury and also sustained other injuries all over his body. He was inpatient for 10 days. The Tribunal has not awarded any compensation on the head of ‘Loss of amenities’ and total compensation awarded is on the lower side. Thus, the claimant-appellant would be entitled for modified compensation as follows:
Amount in (Rs.) 1. Injury, pain and suffering 20,000 2. Future loss of earning 1,24,800
Thus, the appellant would be entitled for enhanced compensation of Rs.2,31,877/- with interest at the rate of 6% per annum as against Rs.1,37,327/- awarded by the Tribunal. Admittedly, the driver of the offending vehicle had licence to drive LMV without transport endorsement. In view of the decision in MUKUND DEWANGAN’s case supra, driver possessing licence to drive LMV, could drive transport vehicle of that particular category. In the facts and circumstances, saddling of liability on respondent No.1 is modified and the liability is saddled on respondent No.2- Insurance Company.
Accordingly, appeal is allowed in part.
SMJ Sd/- JUDGE