IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 15TH DAY OF FEBRUARY, 2019 BEFORE:
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MISCELLANEOUS FIRST APPEAL No.4348 OF 2010 [MV] BETWEEN Sri Venkataswamy Reddy s/o Sri Thimmarayappa aged about 48 years r/a Banahalli Chandapura Post Anekal Taluk Bangalore-560 081. ... Appellant [By Sri V S Narayan, Advocate] AND 1. M/s.IFFCO-TOKIA General Insurance Co. Ltd., City Centre, Church Street Bangalore-560 001 Represented by its Branch manager.
2. Sri Lokesh J s/o Sri Jogappa Major, r/a Hennekki Hennagara Post Jigani Hobli Anekal Taluik Bangalore Urban Dist. ... Respondents [By Sri A N Krishnaswamy, Advocate for R1, R2 served unrepresented) This MFA is filed under Section 173(1) of MV Act against the judgment and award dated 19.12.2009 passed in MVC No.3427/2007 on the file of IX Additional Judge Member, MACT-7, Court of Small Causes, Bangalore, partly allowing the claim petition for compensation and seeking enhancement of compensation.
This MFA coming on for hearing this day, the Court delivered the following:
JUDGMENT Appellant is the claimant in MVC No.3427/2007 on the file of the IX Additional Judge Member, MACT-7, Court of Small Causes, Bangalore.
2. The present appeal is filed seeking enhancement of compensation awarded by the Tribunal, wherein a sum of Rs.3,54,320/- was awarded with interest at the rate of 6% p.a. to the appellant for the injuries sustained by him in a road traffic accident, which occurred on 24.6.2006.
3. I have heard the learned counsel for the appellant as well as the learned counsel appearing for respondent No.1/ Insurance Company.
4. It is the case of the appellant that on 24.6.2006 at about 8.30 a.m. while he was proceeding on a motorcycle bearing Regn. No.KA-05/EX-196 along with pillion rider, on Anekal - Chandrapura Road and when they reached near Igalur village, the driver of a goods auto rickshaw bearing Regn. No.KA-05/C-4046 drove the said vehicle in a rash and negligent manner and dashed against the motorcycle, on account of which, he fell down and sustained grievous injuries. It is the further case of the appellant that he was aged about 42 years and he was an agriculturist and earning a sum of Rs.5,000/- p.m. On account of the accident, he suffered permanent disability and also spent substantial amount towards medical expenses etc.
5. Claim petition was filed seeking a total compensation of Rs.20 lakhs. On behalf of the claimant, two witnesses were examined and Ex.P1 to P13 were marked. The claim petition was opposed by respondent No.1/Insurance Company. On behalf of the Insurance Company, RW1 was examined and Exs.R1 to R3 were got marked.
6. The Tribunal after considering the evidence and material on record awarded a total compensation of Rs.3,54,320/- with interest at the rate of 6% p.a. on 3,44,320/- from the date of petition till realization. Further the Tribunal held that the respondent No.2 therein i.e. the owner of the offending vehicle is liable to pay the compensation, on the ground that the driver of the vehicle in question was not possessing a valid and effective driving license in respect of the said vehicle.
7. It is the contention of the learned counsel for the appellant that the total compensation awarded by the Tribunal under different heads are on the lower side and the Tribunal has not taken into consideration the actual income of the claimant and the income taken at Rs.3,000/- p.m. is not proper. He would further contend that though the claimant has produced medical bills and claimed a sum of Rs.5,00,000/- towards medical expenses, the Tribunal has awarded only a sum of Rs.2,00,000/-, which is on the lower side. He would further contend that the doctor has assessed the disability to the whole body at 20%. However, the Tribunal has taken 8% as functional disability without any justification and accordingly, the learned counsel seeks to enhance the compensation awarded by the Tribunal by modifying the judgment and award.
8. Per contra, learned counsel appearing for respondent No.1/Insurance Company justified the compensation awarded by the Tribunal contending that the same is just and reasonable. He submits that the driver of the goods autorickshaw which caused the accident was not possessing the driving license to drive a transport vehicle and therefore the Tribunal was proper in absolving the Insurance Company from paying the compensation and holding the owner of the vehicle responsible and liable to pay the compensation. Accordingly, the learned counsel seeks to dismiss the appeal.
9. It is the case of the claimant that on 24.6.2006 at 8.30 a.m, while he was proceeding on a motorcycle bearing Regn. No.KA-05/EX-196 alongwith a pillion rider, the driver of goods auto rickshaw bearing Regn. No.KA- 05/C-4046 came in a rash and negligent manner and dashed against the motorocycle, as a result of which, he fell down and sustained grievous injuries. According to Ex.P6 – wound certificate, the appellant sustained two simple injuries and three grievous injuries. He sustained type-IIIB open fracture of both bones of right leg. He also sustained fracture of right tibial condyle. He also sustained type-IIIB open injury of right knee. According to doctor-PW2, the appellant had difficulty in activities like sitting, squatting, fast walking, climbing stairs. The disability to the right lower limb was assessed at 50% and to the whole body, it was assessed at 15%. Appellant was an agriculturist. Considering the nature of injuries and the disability assessed by the doctor, the Tribunal is not proper in taking the total disability at 8% to the whole body. Hence, the disability, in the facts and circumstances of the case, can be assessed at 15% to the whole body.
10. According to the learned counsel for the appellant, the appellant was earning a sum of Rs.5,000/-
p.m. However, there is no satisfactory evidence to hold that the appellant was earning a sum of Rs.5,000/- p.m. by doing agricultural work and therefore the monthly income assessed by the Tribunal is just and proper.
11. The claimant was aged about 42 years at the time of accident and therefore the appropriate multiplier is 14. Hence, the appellant is entitled for a sum of Rs.75,600/- towards loss of future earning as against Rs.40,320/- awarded by the Tribunal.
12. Learned counsel for the appellant would contend that the appellant has spent more than Rs.5,00,000/- towards medical expenses, food and travel expenses etc. The Tribunal has taken into consideration the medical bills and held that some of the medical bills are no way concerned to the appellant since his name was not found in the said medical bills. Further, the cash bills produced by the appellant are not supported by the medical prescriptions. Having considered the medical bills and prescriptions, the Tribunal has awarded a sum of Rs.2,00,000/- towards medical expenses, which is just and proper.
13. The Tribunal has awarded a sum of Rs.9,000/- towards loss of earning during the laid up period. Since there is no change in the monthly income, the sum awarded under the said head is proper. The Tribunal has awarded a sum of Rs.20,000/- towards loss of amenities and future unhappiness. Considering the nature of injuries and the disability, the same is enhanced to Rs.40,000/-. The Tribunal has awarded only a sum of Rs.10,000/- towards future medical expenses. According to the doctor, the appellant has to undergo further surgeries for implant removal from the right leg and approximate amount would be Rs.20,000/-. Considering the said evidence, Rs.10,000/- under the head of future medical expenses is enhanced to Rs.20,000/-. The compensation under the head of conveyance and nourishment awarded by the Tribunal is enhanced from Rs.5,000/- to Rs.10,000/-. The compensation awarded under the head of pain and agony is unaltered. Hence, the appellant is entitled for a total compensation of Rs.5,14,600/- as against Rs.3,54,320/- awarded by the Tribunal.
14. It is not disputed that the offending vehicle i.e. goods auto rickshaw bearing Regn. No.KA-05/C-4046 was insured with respondent No.1 and there was valid insurance policy in respect of the said vehicle. However, the contention of the Insurance Company is that the driver of the said vehicle was holding driving license to drive non-transport vehicle. It is the contention that, a separate endorsement ought to have been taken by the driver to drive a goods auto, which is a transport vehicle. The Tribunal accepting the said argument absolved the liability of the Insurance Company from paying the compensation and held that the owner of the vehicle in question is liable to pay the compensation.
15. The question involved in the present case with regard to valid and effective driving license to drive the goods vehicle and the driver of the said vehicle possessing the license to drive light motor vehicle, is already decided by the Hon’ble Apex Court in the case of ‘Mukund Dewangan –vs- Oriental Insurance Co. Ltd’. reported in 2017 ACJ 2011. In that view of the matter, the contention of the learned counsel for respondent No.1 that the Insurance Company is not liable to pay the compensation, cannot be accepted. The finding recorded by the tribunal in this regard is liable to be set aside. For the foregoing reasons, I pass the following:
ORDER Appeal is allowed in part.
The judgment and award dated 19.12.2009 passed in MVC No.3427/2007 on the file of the IX Additional Judge Member, MACT-7, Court of Small Causes, Bangalore, is hereby modified.
The judgment and award passed by the Tribunal holding respondent No.2-owner of the offending vehicle liable to pay the compensation amount is hereby set aside.
The appellant/claimant is entitled for a total compensation of Rs.5,05,600/- with interest at the rate of 6% p.a. from the date of petition till realization on an amount of Rs.4,85,600/-
Respondent No.1-Insurance Company shall liable to pay the compensation and the same shall be deposited within a period of four weeks from the date of receipt of copy of this judgment.
Sd/- JUDGE Bkm.