IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR MFA NO. 4550 OF 2015 ( MV ) BETWEEN SRI. RANGASWAMY S/O THMMAIAH AGED ABOUT 26 YEARS OLD RESIDENT OF NINGEGOWDANAPALY MAYASANDRA [HOBLI] TURUVEKERE TQ TUMKUR DISTRICT-572 227.
NOW R/O SHNTHINAGARA RAILWAY STATION ROAD, TUMKUR TWON TUMKUR TALUK & DISTRICT-572101.
... APPELLANT (BY SRI. V. B. SIDDARAMAIAH - ADVOCATE) AND 1. THE ROYAL SUNDARAM GENERAL INSURANCE CO. LTD., 2ND FLOOR, MANGALAYA PURABHAVAN, 132, BRIGADE ROAD BANGALORE – 560 001 REPT. BY ITS BR. MANAGER.
2. SRI SHIVANNA GOWDA S/O PUTTEGOWDA AGED ABOUT 47 YEARS R/O 287, JAYAPURA HOBLI BEERIHUNDI, MYSORE DISTRICT PIN – 570 004.
... RESPONDENTS (BY SRI. H. S. LINGARAJ – ADVOCATE FOR R-1; R-2 SERVED – UNREPRESENTED) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 07.03.2015 PASSED IN MVC NO. 452/2013 ON THE FILE OF THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE, MACT, TUMKUR, 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 This appeal though listed for admission, with the consent of the learned counsel for both the parties is taken up for hearing and is heard and disposed of by this judgment.
2. This appeal is preferred by the appellant – claimant being not satisfied with the compensation awarded by the Tribunal by its judgment and award dated 07.03.2015 in MVC No.452/2013, seeking enhancement of compensation and with a further prayer to shift the liability from the owner to the Insurance Company. The Tribunal had awarded compensation in a sum of Rs.1,52,500/- with interest at 8% from the date of petition till realization.
3. Heard the learned counsel for the appellant and the learned counsel for the respondents.
4. The factual matrix of the appeal is that on 04.07.2012 at about 3.3.0 p.m. when the appellant / petitioner was proceeding on his motorcycle bearing Regn.No.KA-44-K-4345 near Honakere Gollarahatti Gate, one Tata Ace vehicle bearing Regn.No.KA-09-B- 4771 which was driven in a rash and negligent manner and at high speed, had hit his motorcycle, as a result of which the appellant fell down and sustained grievous injuries. Immediately, he was shifted to General Hospital, Turuvekere and later to Hemavathi Hospital, Tiptur and later to Hemavathi Hospital, Hassan, wherein he underwent surgery and was an in-patient there for a period of two months. He had spent huge amounts towards medical expenses. Hence, he filed a claim petition before the Tribunal seeking compensation.
5. On receipt of notice, both the respondents appeared through counsel but however, the first respondent - Insurance Company filed written statement denying the petition averments. The Insurance Company had admitted the insurance policy issued to the offending vehicle but that the liability was subject to terms and conditions of the policy. He further contended that the accident had occurred due to the sole negligence of the rider of the motor cycle, namely the appellant. He further contended that the driver of the Tata Ace vehicle had no valid and effective driving licence to drive it and thereby there is violation of policy condition and therefore, the Insurance Company was not liable to pay compensation. On all these grounds, the Insurance Company sought for dismissal of the petition filed by the appellant / petitioner for compensation.
6. The Tribunal, after evaluating the oral and documentary evidence held that the accident had occurred due to rash and negligence of the driver of the offending vehicle and further held that the driver of the offending Tata Ace did not have a valid and effective driving licence i.e., he only had a learner’s licence but did not have a driving licence with transport endorsement as on the date of the accident and hence was not competent to drive the offending vehicle. There being violation of policy condition, the Tribunal held that the Insurer was not liable to indemnify the insured. Hence, the Tribunal proceeded to award compensation of Rs.1,52,500/- with interest at 8% per annum from the date of petition till the date of realization and directed Respondent No.2 – owner of the offending vehicle, to pay the said compensation. Aggrieved by the said order, the petitioner / appellant has filed this appeal seeking for enhancement of compensation and with a further prayer that the liability be fastened on the Insurance Company.
7. Learned counsel for the appellant contends the appellant was an agriculturist and was earning a monthly income of Rs.10,000/- per month. Though there was no material produced to evidence his income, the accident being of the year 2012, as per the settled norms, the notional income ought to have been taken at Rs.7,000/-. Further, the Doctor had certified that he had suffered 32% disability to the whole body. The said facts have not been taken into consideration by the Tribunal has not awarded any compensation towards ‘Loss of future income’. However, the Tribunal has taken his income at Rs.4,500/- per month to assess the income towards ‘Loss of income during treatment period’. Hence, the learned counsel contends that his notional income be taken appropriately considering the fact that the accident had occurred in the year 2012, to arrive at the compensation towards ‘Loss of future income due to permanent disability’.
He further contends that the Court below erred in absolving the first respondent – insurer of its liability on the ground that driver of the vehicle involved in the accident had no valid and effective driving license. This finding of the Tribunal is contrary to the law declared by the Hon’ble Apex Court. In support of his contention learned counsel for the appellant has relied on a decision of the Apex Court in the case of MUKUND DEWANGAN VS. ORIENTAL INSURANCE CO.LTD., ((2017) 14 SCC 663) wherein it is held that the absence of transport endorsement per se cannot be a ground to absolve the insurer from the award liability and the MACT could not have let the insurer go free even in the absence of transport endorsement on the driving license of the driver of the offending vehicle.
8. Learned counsel for the respondent-insurer contends that since the policy condition is violated by the owner, the liability of insurer does not arise and the Tribunal has rightly fastened the liability on the owner of the vehicle. Therefore, in this appeal it does not call for any interference of the judgment and award passed by the Court below.
9. Having heard the learned counsel for the parties, I find that the accident being of the year 2012, the income of the appellant ought to have been taken at Rs.7,000/- instead of Rs.4,500/- taken by the Tribunal. Hence, as per the settled norms, the notional income of the appellant is hereby taken at Rs.7,000/- to compute the compensation towards ‘Loss of future income due to disability’, which has not been awarded by the Tribunal. Though the Doctor has assessed the disability at 32% to the whole body, I hereby take the disability at 10% in order to award compensation under the said head. Since the appellant was aged 24 years at the time of the accident, the appropriate multiplier would be ‘18’. Hence, with Rs.7,000/- as the income and disability at 10%, applying multiplier ‘18’ the compensation towards ‘Loss of future income due to disability’ is arrived at Rs.1,51,200/- (7000 x 12 x 18 x 10/100). Further, the compensation towards ‘Loss of income during treatment period’ is worked out at Rs.21,000/- as against Rs.13,500/- awarded by the Tribunal. The total enhancement would be Rs.1,58,700/-.
10. In view of the discussion made above and with the altered factors, the compensation is re-worked out
Loss of income 13,500 7,500 21,000
Further, as regards the liability, it is relevant to refer to the judgment rendered in MUKUND DEWANGAN VS. ORIENTAL INSURANCE CO.LTD., (2017) 14 SCC 663 wherein Hon’ble Apex Court has answered the question against the insurer and in favour of the claimant holding that the insurer cannot avoid liability only on the ground of absence of Transport Endorsement. Therefore, the issue is no more res integra. Following the judgment passed in the Mukund Dewangan as stated supra, this appeal also stands disposed of. The judgment and award passed by the Tribunal in MVC No.452/2013 is modified insofar as it relates to fastening of the liability on the owner of the offending vehicle. The liability saddled on the owner of the offending vehicle is set aside and entire liability is fastened on first respondent – Royal Sundaram General Insurance Company Ltd.
11. With the above observations, the appeal is allowed in part. The entire liability is hereby shifted from the owner of the offending vehicle – Respondent No.2 to the insurer – Respondent No.1. Respondent No.1 – Insurance company is directed to deposit the entire award amount of Rs.3,11,200/- with accrued interest at 8% p.a. within a period of four weeks from the date of receipt of copy of this judgment, before the Tribunal. The same shall be disbursed to the claimant / appellant in terms of the award passed by the Tribunal, on proper identification. However, the impugned judgment and award, in so far as it relates to the rate of interest, apportionment and deposit is concerned, shall remain unaltered.
Amount in deposit if any in this appeal, shall be transmitted to the concerned tribunal forthwith along with the LCR.
Office to draw the decree accordingly.
SD/- JUDGE KS