IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR. JUSTICE H. T. NARENDRA PRASAD M.F.A.No.8426 OF 2011(MV) BETWEEN:
Venkatesh Aged about 32 years S/o Somashetty Benagale, Niluvadi Post Harnahalli Hobli Periyapatna Taluk Mysore District Presently residing at No.105 3rd Cross, 5th Main, J.P.Nagar Mysore. … Appellant (By Sri. R.D.Renukaradhya, Advocate for M/s P.Nataraju Associates) AND:
1. Tharakatha Melenta Major S/o Thimmappa Melenta, D.No.9-196, Bajal Mangalore District Kanara-South Pin-575 027.
2. United India Insurance Company Limited P.B.No.73, Sundar Arcade B.N.Road, Mysore Represented by it’s Manager Pin-570 001. ... Respondents (By Sri.M.U.Poonacha, Advocate, For R2, R1 is served but unrepresented) This MFA is filed under 173(1) of MV Act, against the Judgment and Award dated:03.05.2011 passed in MVC.No.188/2006 on the file of the I Additional Senior Civil Judge, MACT, Mysore, partly allowing the claim petition for compensation and seeking enhancement of compensation.
This MFA coming on for hearing, this day, this Court, delivered the following:
J U D G M E N T The claimant has filed this appeal challenging the judgment and award dated 03.05.2011 passed by the I Additional Senior Civil Judge and MACT, Mysore whereby the Tribunal has awarded a compensation of Rs.1,33,840/- with interest at 6% p.a. from the date of petition till the date of deposit.
2. The brief facts of the case are that on 02.01.2006 at about 9.30 p.m. when the claimant was traveling in auto rickshaw bearing registration No.KA-12/6242 from Koppala gate to his house, at that time a tanker lorry bearing registration No.CRQ-7332 came from B.M.Road in a rash and negligent manner, driven by its driver with a great speed and dashed to the auto in which claimant was traveling, due to which the auto was suddenly capsized and claimant fell down and he was unconscious and he has sustained injuries to his head and both the legs and nose was fractured. Immediately after the accident, claimant was shifted to Kushalanagara Hospital and then shifted to K.R.Hospital, Mysore for further treatment where claimant has taken treatment as inpatient for 23 days, underwent surgery for fixing the interlocking nail and was advised to take rest for six months. Immediately after recovering from the injuries, he has filed a claim petition before the MACT, Mysore in MVC No.188/2006.
3. To establish his case, claimant has examined two witnesses and got marked 119 documents. On the other hand, on behalf of the Insurance Company one witness was examined and got marked two documents. On appreciation of the oral and documentary evidence, the Tribunal has granted a compensation of Rs.1,33,840/- with interest at 6% p.a. and held that respondent No.1 alone is liable to pay the compensation on the ground that the driver of the offending vehicle was not having effective driving licence. Being aggrieved by the same claimant has filed this appeal.
4. Sri R.D.Renukaradhya, learned counsel for the appellant submits that in view of the law laid down by the Apex Court in the case of MUKUND DEWANGAN vs. ORIENTAL INSURANCE COMPANY LIMITED reported in (2017) 14 SCC 663 there is no requirement to obtain separate endorsement to drive transport vehicle, and if a driver is holding licence to drive light motor vehicle, he can drive transport vehicle of such class without any endorsement to that effect.
5. He further submits that at the time of the accident claimant was working as a Peon in Ponnapa Coffee Curing Works and was earning Rs.5,000/- per month. The Tribunal is not justified in taking the monthly income as Rs.3,000/- and prays for allowing the appeal.
6. Per contra, Sri M.U.Poonacha, learned counsel appearing for the respondent - Insurance Company submits that the driver of the offending vehicle was having a licence to drive Light Motor Vehicle and he was riding a tanker. Therefore, the Tribunal has rightly held that respondent No.1 alone is liable to pay the compensation.
7. He further submits that even though the claimant has claimed that he was earning Rs.5,000/- per month but he has not produced any documents to establish the same. Hence he sought for dismissal of the appeal.
8. Heard learned counsel for the parties and perused the records.
9. It is not in dispute that the appellant met with an accident on 02.01.2006. Due to that accident he suffered severe injuries and he has sustained head injuries, both legs and his nose was fractured. He has undergone treatment as inpatient for 23 days. The specific case of the claimant is that he was earning Rs.5,000/- per month as Peon in Ponnappa Coffee Curing Works. The Tribunal is not justified in taking the monthly earning of the petitioner as Rs.3,000/- Even in the chart prepared by Lok Adalat for deciding the cases, for the year 2008-2009 the income was fixed at Rs.4,500/- to Rs.5,000/-. Taking into consideration the fact that the accident is of the year 2006, it is proper to take the monthly income of the claimant at Rs.3,500/-. Accordingly, the ‘loss of future income’ is worked out as follows:
Rs.3,500 x 12 x 7% x 17 = Rs.49,980/-
The compensation under the head ‘loss of future income’ is enhanced from Rs.42,840/- to Rs.49,980/-.
10. Since the income of the claimant is enhanced from Rs.3,000/- to Rs.3,500/- per month, the compensation awarded under the head ‘loss of earnings during the period of treatment’ has to be enhanced from Rs.9,000/- to Rs.10,500/-.
11. The award passed by the Tribunal, dated 03.05.2011, is modified as under:
12. In view of the judgment of the Hon’ble Apex Court in the case of MUKUND DEWANGAN (supra) wherein it is held that if a driver is holding a licence to drive light motor vehicle, he can drive transport vehicle of such class without any endorsement to that effect. Hence the respondent Nos.1 and 2 are held jointly liable. The Insurance Company is directed to deposit the enhanced compensation amount along with an interest @ 6% per annum from the date of filing of the claim petition, till the date of realization, within a period of six weeks from today. The amount so deposited by the Insurance Company shall be disbursed to the claimant, after due verification of his identity.
With the above modifications the appeal is allowed in part.
Sd/- JUDGE Cm/-