THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF JUNE, 2017 BEFORE THE HON’BLE MR. N.K. SUDHINDRARAO M.F.A. NO. 2635/2014 (MV) BETWEEN SRI. RAJAPPA, S/O THIMMAPPA, AGED ABOUT 47 YEARS, R/AT KESHAVAPURA VILLAGE, HOLALKERE TALUK – 577 526.
CHITRADURGA DISTRICT. ...APPELLANT (BY SRI.SIDDAPPA B. M., ADVOCATE) AND 1. THE BRANCH MANAGER, NATIONAL INSURANCE CO. LTD., BRANCH OFFICE, B. M. COMPLEX, LAKSHMI BAZAR, CHITRADURGA- 577501, POLICY ISSUED BY DHARWAD NO. 602501/3/09/6200007124.
2. SRI. RAVIKUMAR, S/O VEERABHADRAPPA, AGE MAJOR, OWNER OF AUTO KA-16/A-194, R/AT KEB QUARTERS, HOLALKERE TOWN – 577 526. CHITRADURGA DISTRICT.
3. THE BRANCH MANAGER, NATIONAL INSURANCE CO. LTD.
B.M. COMPLEX, CHITRADURGA – 577 501. POLICY NO. 603703/31/09/ 6300003696 VALID FROM 05/10/1999 TO 04/10/2010 ... RESPONDENTS (BY SMT. MANJULA N. TEJASWI, ADV. FOR R-1 & R-3. R-2 SERVED.) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 10.12.2013 PASSED IN MVC NO.79/2011 ON THE FILE OF THE SENIOR CIVIL JUDGE AND ADDL. MACT, HOLALKERE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
J U D G M E N T This appeal is directed against the judgment and award dated 10.12.2013 in MVC No. 79/2011 passed by the Senior Civil Judge and Additional MACT at Holalkere seeking enhancement of compensation awarded by the Tribunal.
2. In order to avoid over-lapping and confusion, the parties hereinafter are referred in accordance with their respective ranks in the claim petition before the Tribunal.
3. The brief facts of the case as could be seen from the records are that, on 30.04.2010 at about 7.00 p.m., the claimant/appellant-Rajappa was proceeding on a motor cycle bearing registration No. KA.25.S.4834 as a pillion rider along with one Sri. Venkatesh on NH.13 from Chitradurga towards Keshavapura in Holalkere Taluk. While so proceeding, near Devapuradahatti, the driver of an Autorikshaw bearing Registration No. KA.16.A.194, which was parked by the side of a tamarind tree, opened the right side cabin door of the autorickshaw all of a sudden and due to that the rider of motor cycle forced to hit the said door and as a result of which the petitioner sustained injuries and he fell down. Immediately, he was taken to District Hospital at Chitradurga and he was treated there in the said hospital and he underwent a surgery and he was an inpatient from 01.05.2010 to 25.05.2010 and some rods, screw plates and nails were implanted. It is stated that, even after discharge, during the course of follow- up treatment, it is stated that he spent more than Rs.18,000/-, in spite of that, the injuries have not been completely cured and he suffered some permanent disability. It is also stated that, prior to the date of accident in question, the appellant was doing agricultural work and he was getting income of Rs.3.00 lakhs per annum from agriculture. The respondent kept all these things in abeyance and denied the claim of the petition.
4. Respondent No.1- Magharaj V. Pujar is the owner of motor cycle bearing Registration No. KA.25.S/4835, Respondent No.3- Ravikumar, S/o. Veerabhadrappa is the owner of the autorickshaw bearing Registration No.KA.16/A-194. Respondent Nos.
2 and 4 are the Insurance Companies. Respondent No.1 was set ex-parte and Respondent No.3 was represented by Sri. K. Puttappa, Respondent Nos. 2 and 4 were represented by Sri. P. Nanjundappa, learned Advocate. Respondent No.3 – Driver of autorickshaw totally denied the claim of the appellant. However, it was stated that the driver of the autorickshaw was holding a valid licence.
5. Based on the material prepositions and other relevant materials, the Tribunal framed issues on the accident, injuries, negligence and entitlement of compensation.
6. Before the tribunal, the claimant-Rajappa got himself examined as PW.1 and also examined the Dr. Manjunatha as PW.2 and got marked Exs.P1 to P.101 including plaint, FIR, Mahazar, IMV report, medical bills etc. Whereas on respondents’ side one Mr. B.L. Palanna was examined as RW.1 and got marked documents- Exs.R1 & R2- Policy Copy, Ex.R3-Notice copy and Exs. R4 & R5 –Postal receipt and acknowledgement.
7. Heard Sri. Siddappa B.M., the learned counsel for the appellant and Smt. Manjula N. Tejaswi, learned counsel for Respondent Nos. 1 and 3. Respondent No.2 served and unrepresented.
8. Learned counsel for the appellant would submit that, on evaluation of injuries, the percentage of disability has not been assessed properly; The Tribunal failed to consider that there was absolutely no fault on part of the claimant and as such it has not assessed the expenditure properly, which he incurred. Further, he contends that he is challenging the judgment and award under this appeal questioning the legality in apportioning the negligence between the owner of the Autorickshaw and owner of the motor cycle, instead of fastening the liability in full on the insurance company. Thus, the compensation of Rs.4,39,800/- as ordered by the Tribunal is insufficient in the light of the fact that the injuries caused disablement to the appellant and further he is finding it very difficult to meet the daily requirement of life and go on with his tailoring profession as smooth as earlier.
9. Learned counsel for the respondent-Insurance company would submit that the Tribunal has fairly assessed the material and circumstances regarding the accident, negligence and the quantum of compensation.
10. Exs.P7 is the wound certificate and P101 is the disability certificate according to which the appellant, has suffered injury,-
i) Fracture of both bones of left leg ii) Fracture of shaft left femur iii) Fracture of shaft left humerus 11. The appellant undergone surgery on 10.05.2010 by way of closed IMIL nail for femur and Tibia and ORIF with DC/Screws for humerus. apart from that, the Tribunal finds that the Doctor has opined that another surgery is necessary in future for removing the implants and which incurs further expenditure.
12. Learned counsel for the appellant submits that the claimant is given option to file case against any one of the said vehicles attributing negligence under a claim of composite negligence. Thus, the liability of payment of compensation ought to have been fixed in respect of the vehicle which had valid policy and driver who had licence.
13. It is seen that the amount of compensation awarded by the Tribunal is as under:
Rounded off to Rs.4,39,800/- 4,39,800-00 14. The learned counsel for the respondent – Insurance Company submits that the Tribunal has fastened the liability of payment of compensation on the Respondent No.1 and 3. But the claimant has chosen a particular respondent-Insurance company, with which the driver of the offending vehicle had full-pledged insurance policy and proper and valid driving licence. Thus the claim of the learned counsel for the appellant that he was at liberty to choose the respondent of his choice.
15. Insofar as the income of the claimant-Rajappa is concerned, the learned counsel states that the claimant was earning Rs.10,000/- pm. but the Tribunal has considered the same at Rs.4,500/- as Just and Proper. The tribunal finds, there is contributory negligence attributed by Respondent No. 1- Megharaj V. Pujar, Owner of the motor cycle and respondent No.3- Ravi Kumar, owner of Autorikshaw, and Respondent No.2-National Insurance Co Ltd, is said to be the insurer of Motor Cycle, it dismissed the petition as against Respondent No.4-National Insurance Company.
16. Respondent Nos. 1 and 3 are fastened with the contributory liability at 50% in the ratio of 50:50 each and respondent No.2 is fastened with the remaining liability of 50% with interest in favour of the petitioner, to be deposited within a month.
17. In the facts and circumstances of the case, it is just and necessary to refer para-22 of the judgment of the tribunal, which reads as under:-
“As per the evidence of RW.1 the driver of autorickshaw was not holding valid and effective D.L. Accordingly, notice was issued to him to produce relevant documents. But, he failed to produce the documents. Respondent No.3 has not adduced evidence to substantiate his contention. Therefore, it is clear that there is violation of policy conditions in respect of the autorickshaw. Hence, respondent no.3 alone is liable to pay remaining 50% of that amount with interest in favour of the petitioner. Hence, petition against respondent No.4 is liable to be dismissed in that regard. Accordingly, issue No.2 is answered in the said term.
18. Considering the avocation of the claimant/appellant as on the date of accident in question, the Tribunal has assessed the monthly income of the claimant at Rs.4,500/- and by taking disability at the rate of 25% (Rs.1125/-), the Tribunal has assessed loss of permanent disability (Rs.1125x12x14) at Rs.1,89,000/- which in my opinion, the notional income, in the circumstances of the case, is just and proper.
19. In regard to the point on liability, Respondent No.2 was held liable, in the light of non-possessing of valid and proper D.L. by the driver of the offending vehicle. However, 50% of the total liability is distributed between Respondent No.1 and 3 at the ratio of 50:50 each and in the light of holding of valid Insurance Policy by Respondent No.3-owner of autorickshaw, 50% liability is fixed on Respondent No.2. In the light of Respondent Nos. 1 & 3 are directed to bear the risk at the rate of 50% in the ratio of 50:50 each since Respondent No.1-owner had valid Insurnace Policy covering the risk, and respondent No.2 is directed to bear the risk at the rate of 50%, Respondent No.4 –Insurer of Respondent No.2 is exempted from liability.
20. Learned counsel for the appellant submits that the entire liability should be cast on respondent No.2 instead of sharing the same between Respondent No.1- owner of motor cycle and Respondent No.3-owner of autorickshaw. His submission cannot be considered by this court, because the learned counsel for the appellant has failed to convince the court as to why and how the Insurer of Autorickshaw has to be compelled for payment of compensation. Moreover, the actual liability of payment of compensation on Respondent No.1 (owner of motor cycle) is at 25% and liability of Respondent No.2 is actually 50%. Therefore, in the circumstances, the question of liability is not interfered with by this court.
21. Now regarding the point of quantum of compensation, insofar as the point of future medical expenditure is concerned, Rs. 30,000/- is awarded by the Tribunal, on considering 50% disability to the particular limb. Considering the nature of injury, surgery undergone and insertion of some implants and as per the opinion of the Doctor, the appellant is required to undergo one more surgery for removal of implants, this court finds it just and necessary to enhance the compensation under this head and accordingly another sum of Rs.70,000/- is awarded and accordingly, appellant is entitled for a sum of Rs.1,00,000/- (Rs.30,000 + Rs.70,000) under this head 22. It is seen from the records that the Tribunal has awarded a sum of Rs.25,000/- towards loss of amenities. Considering the evidence of the doctor, who treated the claimant and rate of disability, due to which the claimant/appellant cannot climb stairs, cannot ride bicycle, motor cycle and other such works which require maximum support from limbs, and also as it is stated that he cannot stand on his legs for long hours, this court finds that the amount of Rs.25,000/- awarded towards loss of amenity is on the lower side and it requires to be enhanced to Rs.40,000/- (Rs.25,000/- + Rs.15,000). Except this, the compensation awarded by the tribunal under other heads is just and proper and they are not interfered with.
23. In the above circumstances, the compensation is revised and the break-up is as follows:-
24. Accordingly, the appeal is allowed-in-part.
The judgment and award passed by the Tribunal is modified to the extent as stated herein above. The claimant is entitled for an additional compensation of Rs.85,000/- with interest at 6% p.a. from the date of claim petition till the date of realisation.
The Insurance Company is directed to deposit the additional compensation amount together with interest within one month from the date of receipt of a copy of this judgment.
No order as to costs.
Sd/-
JUDGE KGR*