IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF FEBRUARY, 2019 PRESENT THE HON’BLE MRS. JUSTICE S. SUJATHA AND THE HON’BLE MR. JUSTICE MOHAMMAD NAWAZ MISCELLANEOUS FIRST NO.3798/2014 (MV) BETWEEN:
Sri. T. S. Sridhara S/o Srinivasaiah Aged about 28 years R/at Thaggikuppe Village Kasaba Hobli, Magadi Taluk Ramanagara District-562120. …Appellant (By Sri H. B. Somapur, Adv.) AND:
1. M/s. The United India Insurance Co. Ltd.
By its Manager No.366/72, 19th Main 1st Block, Rajajinagar Bangalore – 560 010.
2. Sri Siddappa Major, S/o Hanumaiah No.313, 1st Main 7th Cross, Srikanteshwaranagar Mahalakshmi Layout Bangalore-560 096. …Respondents (By Sri M. U. Poonacha, Adv. for R1; R2 - served) This MFA is filed under Section 173(1) of MV Act against the judgment and award dated 11.09.2013 passed in MVC No.6568/2010 on the file of the III Additional Senior Civil Judge & Member, MACT (SCCH- 18), Bangalore, partly allowing the claim petition for compensation and seeking enhancement of compensation and etc.
This MFA coming on for HEARING this day, S. SUJATHA, made the following:
JUDGMENT This appeal is directed against the judgment and award dated 11.09.2013 passed in MVC No.6568/2010 on the file of the Motor Accident Claims Tribunal and III Addl. Senior Civil & Small Causes Judge, Bangalore (‘Tribunal’ for short).
2. The appellant had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988 (‘Act’ for short) claiming compensation for the injuries sustained by him in the road traffic accident which occurred on 15.9.2010 while he was riding a motor cycle bearing Registration No.KA-02- AQ-6690 on Thaggikuppe-Magadi Road, near Masthikallu, alleging actionable negligence on the driver of Bajaj Autorickshaw bearing Registration No.KA-02-A-4592. The Tribunal after analyzing the material evidence on record awarded total compensation of Rs.1,99,447/- with interest at the rate of 8% p.a. from the date of the petition till the date of realization, fastening the liability on the respondent No.2 – the owner of the offending vehicle.
3. Being dissatisfied with the quantum of compensation awarded and exonerating the respondent No.1-insurance company from its liability, the appellant is before this court.
4. The learned counsel for the appellant would submit that the compensation awarded under different heads is too meager and disproportionate to the gravity of injuries sustained by the claimant.
5. Learned counsel for the appellant would submit that the Tribunal has arrived at a wrong decision that the offending vehicle had the permit only to ply within the radius limits of 25 Kms from BBMP, but the accident has occurred beyond the radius limits of 50 Kms of BBMP and thus the terms and conditions of the policy being violated, the insurer is not liable to pay the compensation awarded. The learned counsel would submit that the endorsement of RTO, Jayanagar, Bangalore placed on record before the Tribunal specifically indicates that the permit of the autorickshaws has been extended to ply within the radius limits of 50 Kms of BBMP, but the Tribunal has failed to appreciate the same in the right perspective. It was further submitted that the quantum of compensation awarded is on the lower side and the same requires to be enhanced substantially.
6. On the contrary, learned counsel for the insurer supporting the impugned judgment and award submitted that no material evidence was placed on record to establish the factum that the offending vehicle was permitted to travel within the radius limits of 50 Kms of BBMP. On the other hand, the permit conditions specified that the offending vehicle was permitted to travel only within the radius limits of 25 Kms of BBMP. Considering the same, the Tribunal has rightly exonerated the insurer form the liability of satisfying the award. It was further contended that the quantum of compensation awarded by the Tribunal is just and proper.
7. I have carefully considered the arguments advanced by the learned counsel for the parties and perused the material on record.
8. As regards the liability of satisfying the award, it is obvious that the claimant has placed reliance on Ex.P13 the endorsement issued by the Transport Department dated 3.1.2008 on the information sought under Right to Information Act wherein it is observed that the autorickshaws possessing the city permit limit is extended to 50 kms from Vidhana Soudha. The said information made available as per Ex.P13 cannot be ignored only as a proposal but not an order. The finding of the Tribunal to the said extent is not justifiable. However, no material evidence is placed on record by the appellant to establish the factum that the place of accident comes within 50 Kms from Vidhana Soudha to get attracted under the extended limit provided to the autorickshaws in terms of Ex.P13.
9. In such circumstances, it can be held that the offending vehicle had no valid permit at the time of the accident. In such situation, the Hon'ble Apex Court in the case of Amrit Paul Singh & Another Vs. TATA AIG General Insurance Company Limited reported in (2018)2 SC eJ 1135 has held that the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver placing reliance on the judgment of the Hon'ble Apex Court in the case of National Insurance Company Limited Vs. Swaran Singh & others reported in (2004) 3 SCC 297 pertaining to pay and recovery principle. Following the said principle of pay and recovery, this Court deems it appropriate to direct the insurer–respondent No.1 to pay the compensation amount to be determined by us to the claimant with interest and the insurer shall be entitled to recover the same from the registered owner of the offending vehicle.
10. As regards the enhancement of compensation is concerned, it is evident from the material available on record that the appellant has sustained fracture of right tibia lower 1/3rd, lacerated wound over right chin, abrasion over left hand, 2nd, 3rd and 4th finger dorsal aspect, lacerated wound over right foot and he was admitted at Victoria hospital as an inpatient from 15.9.2010 to 27.9.2010. The doctor who was examined as PW-2 has assessed the permanent physical disability of the appellant at 20% to the whole body and 40% to the right lower limb. However, the Tribunal determined the functional disability at 10%. Considering these aspects, we deem it appropriate to re-determine the functional disability of the appellant at 13%.
11. The appellant was working as a Photographer at the time of the accident and the certificate issued by the Karnataka Video and Photographers Institute and Ajantha Digitals, Subedar Chatram Road, Bangalore, produced and marked at Ex.P7 discloses that the appellant had attended workshop in ‘Foto Fusion’ held on 9.12.2007. But these documents do not indicate the income of the appellant. In the absence of material evidence placed on record to establish the factum of income, this Court finds no hesitation to determine the monthly income at Rs.6,000/- which is normally adopted in such cases considering the date of the accident.
12. In the wound certificate Ex.P5, the age of the appellant is shown as 25 years. Considering the same, multiplier of 18 is applied. Hence, loss of future income would be Rs.1,68,480 (Rs.6000 x 12 x 18 x 13%). The compensation awarded under different heads is on the lower side compared to the injuries sustained by the appellant and its impact. Hence, the compensation awarded by the Tribunal under the different heads is modified as below:
Sl.
No.
Particulars Amount [in Rs.] 1 Pain and agony 55,000 2 Loss of income during laid up period, rest, nourishment and attendant charges 18,000 3 Medical expenses 9,047 4 Loss of future income 1,68,480 5 Loss of amenities 35,000 6 Conveyance 5,000 TOTAL 2,90,527 13. The total compensation awarded by the Tribunal is modified and enhanced to Rs.2,90,527/- as against Rs.1,99,447/- awarded by the Tribunal which shall carry interest @ 8% p.a. from the date of the petition till realization. The liability is fastened on the respondent No.2 the registered owner of the offending vehicle. However, the respondent No.1-the insurer is liable to pay compensation to the appellant and is permitted to recover the same from the said registered owner of the offending vehicle.
14. The disbursement and apportionment shall be in terms of the order passed by the Tribunal.
The appeal stands allowed to the extent indicated above.
Sd/- JUDGE Sd/- JUDGE Dvr/SN