IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT M.F.A. NO.1709/2011 (MV) BETWEEN:
Sri.Thimmarayappa, S/o Sri. Muddappa, Aged about 44 years, R/a Jadiganahalli, Hoskote Taluk, Bangalore Rural District. ... Appellant (By Sri.M.B.Chandrachooda, Advocate) AND:
1. Sri. Srinivasappa S/o Sri. Narayanappa Aged Major R/at Dibala Village Srinivasapura Taluk Kolar District.
2. United India Insurance Company Limited Rep. by its Manager Regional Office, No.25 1st Floor, Shankaranarayana Building M.G. Road Bangalore-560 001. ... Respondents (Sri.R.G.Halesha, Advocate for R1 Sri.O.Mahesh, Advocate for R2) This Miscellaneous First Appeal is filed under Section 173 (1) OF MV ACT against the judgment and award dated 18.11.2010 passed in MVC No.2643/2002 on the file of I Additional SCJ & MACT, Bangalore, 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 by the injured claimant calls in question the judgment and award dated 18.11.2010 made by Motor Accident Claim Tribunal (‘MACT’, for short) Bangalore(SCCH- 11), allowing the claim petition in M.V.C.No.2643/2002 whereby, a compensation of Rs.1,84,000/- has been awarded with interest at the rate of 6% per annum, subject to usual condition of bank deposit has been awarded.
2. The challenge is on the ground of inadequacy of compensation and also for levying of the award liability on the insurer.
3. The learned counsel for the claimant Sri. M.B.Chandra Choooda vehemently contends only the following two points for consideration:
a. The claimant having sustained grievous injuries was an inpatient from 11.04.2002 to 29.05.2002 i.e., for a period of 49 days; doctor who was examined as PW2 had specifically stated that the permanent disability to the particular limb was 42% and to the whole body was 26%, whereas the MACT has adjudged a lesser occupational disability of 15%. Therefore, right compensation has been denied and b. The MACT grossly erred in not levying the award liability on the 2nd respondent even when the driving license of the driver of the offending vehicle lacked an endorsement vide decision of the Apex Court in the case of Mukund Dewangan Vs. Oriental Insurance company Limited reported in AIR 2017 Supreme Court 3668.
4. The learned senior panel counsel for respondent No.2 makes submission in justification of the award in question contending that MACT being a statutory adjudicatory tribunal with accumulated wisdom. Consequently, he submits that the liability of the insurer arises under contract of insurance. Therefore, in view of the breach of conditions therein, the insurer cannot be held liable to pay compensation.
5. The other contention of the learned senior panel counsel for the respondent No.2-insurer is that the law laid down in the case of Mukund Devangan is being considered in a larger Bench. Therefore, precedential value of the case in Mukund Devangan is in doubt.
6. I have heard the learned counsel appearing for the claimant and the learned senior panel counsel for respondent No.2 and perused the appeal papers.
7. The first contention of the claimant’s side that there is no doubt about assessment of occupational disability of the injured claimant is sustainable going by the evidentiary material on record. The doctor who had treated the injured- claimant has specifically stated that the medical disability to the whole body was 42% and that too the limb was 26%. That being so, the MACT could have taken roughly the occupational disability at 20%. Therefore, compensation needs to be re-worked as Rs.3,000x12x12x20%=86,400/-.
8. The other contention of the claimant side that the MACT ought to have levied the award liability on the respondent even in the absence of endorsement on the driving license of the offending driver is again sustainable, in view of the Mukund Dewangan case as stated supra in favour of claimant. A decision of the Apex Court does not diminish in precedential value merely because the same is referred to a Larger Bench for reconsideration.
In view of the above, this appeal succeeds; the impugned judgment and award of the Tribunal dated 18.11.2010 are modified by enhancing the amount of compensation from Rs.1,84,000/- to Rs.2,70,000/- (Two Lakh and Seventy Thousand Rupees) only with interest at the rate of 6% per annum. Further, the liability is fastened on the 2nd respondent-United India Insurance Company Limited. The enhanced compensation shall be paid within four weeks. All other terms and conditions are left intact.
Costs made easy.
Sd/- JUDGE JS/-