IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT M.F.A.NO.5609 OF 2014 (MV) BETWEEN Mr. Thimmaraju @ Papu S/o Thimmaiah, Aged about 30 years, R/at No.Maharaja Kattegat, Kanakapura Town, Ramanagaram District – 571 511.
Also R/at Aremegala Doddi, Uyyamaballi Hobli, Inoorugollahalli Post, Kanakapura Taluk – 562 117. ... Appellant (By Smt. P.V.Kalpana, Advocate) AND 1. Sri. Shivashankar S/o Ramegowda, Major, R/at No.188, Deveerammanandoddi, Sathnur Hobli, Kanakapura Taluk, Ramanagaram District – 571 511.
2. M/s Iffco Tokio General Ins. Co. Ltd., No.41, Cistu Complex, 2nd Floor, Lavalle Road, Bengaluru – 560 001. ... Respondents (By Sri. B. Pradeep, Advocate for R2; Notice to R1 is d/w v/o dated 05.12.2017) This MFA is filed under Section 173(1) of M.V.Act against the judgment and award dated 20.04.2011 passed in MVC.No.2323/2010 on the file of the III Additional Senior Civil Judge, Member, MACT, Bengaluru, partly allowing the claim petition for compensation and seeking enhancement of compensation.
This MFA is coming on for Admission, this day, the court made the following:
JUDGMENT The claimant is in appeal under Section 173(1) of Motor Vehicles Act, not being satisfied with the quantum of compensation awarded and aggrieved by saddling of liability on respondent No.1 by the Tribunal under the judgment and award dated 20.04.2011 in M.V.C.No.2323/2010 on the file of the III Additional Senior Civil Judge and MACT, Tribunal, Bengaluru (SCCH-18).
2. The claim petition was filed under Section 166 of the Motor Vehicle Act, seeking compensation for the injuries sustained in a road traffic accident occurred on 10.03.2010.
3. It is stated that on 10.03.2010 at about 7.15 a.m., the claimant was traveling on motorcycle bearing Reg.No.KA-05-EP-729 as a pillion rider, the driver of the Auto Rickshaw bearing Reg.No.KA-42-4511 came in a rash and negligent manner and dashed against the motorcycle in which the claimant was traveling as pillion rider. Due to which, he fell down and sustained grievous injuries. Claimant states that he was working as auto rickshaw driver and earning Rs.500/- per day.
4. On issuance of notice, respondent No.2-Insurer appeared before the Tribunal and filed objections denying the claim petition averments. But admitted the issuance of the policy in respect of offending auto rickshaw. Further, he denied the involvement of the auto rickshaw in the accident.
5. The claimant examined himself as PW.1 and examined PW.2 - Doctor and got marked 17 documents as Exs.P.1 to P.17. Respondent - Insurer examined RW.1 and got marked 3 documents as Exs.R.1 to R.3.
6. The Tribunal on appreciating the material placed on record, awarded total compensation of Rs.2,10,480/- with
While awarding the above compensation, the Tribunal assessed the income of the claimant at Rs.3,000/- per month and assessed whole body disability at 14%. The claimant not being satisfied with the quantum of compensation awarded by the Tribunal is before this Court in this appeal.
7. Heard the learned counsel for the claimant and learned counsel for the respondent - Insurer. Perused the material on record.
8. Learned counsel for the claimant-appellant would submit that the income of the claimant assessed by the Tribunal at Rs.3,000/- per month is on the lower side. Learned counsel submits that the claimant was working as auto rickshaw driver and was earning more than Rs.500/- per day which would be Rs.15,000/- per month. The Tribunal without there being any reason has assessed the income of the claimant at Rs.3,000/- per month which requires to be enhanced. It is his further submission that Ex.P.11-Notarised copy of driving license is produced to establish that the claimant was working as driver. Claimant suffered fracture of right femur, lacerated wound over right knee front, right toe, great toe and other injuries all over his body. Looking to the injuries suffered by the claimant and treatment taken as inpatient for 12 days, the compensation awarded on the other heads are on the lower side. Further learned counsel for the appellant would submit that PW.2 - Doctor has pointed that the claimant suffered 60% disability to a particular limb and 30% disability to the whole body. But the Tribunal without there being any reason, assessed the whole body disability at 14% which requires to be enhanced. He further submits that the Tribunal committed an error in saddling the liability on respondent No.1 - owner on the ground that the driver of the auto rickshaw had no license to drive the transport vehicle as on the date of accident. Learned counsel further submits that Ex.R.3 - Copy of the Driving License Extract of the driver of the auto rickshaw would indicate that he had driving license to drive the Light Motor Vehicle - Non Transport (LMV-NT). Learned counsel relying upon the decision of the Hon’ble Supreme Court in the case of MUKUND DEWANGAN vs. ORIENTAL INSURANCE CO. LTD., reported in (2017) 14 SCC 663, submits that the insurer would be liable to pay compensation as the license to drive LMV-NT vehicle would enable to drive LMV transport vehicle of the same category. Thus, he prays for enhancement of compensation.
9. Per contra, learned counsel for the respondent- Insurance Company would submit that the compensation awarded by the Tribunal is just compensation which needs no interference by this Court with the judgment and award. Further, he submits that claimant had suffered only one major injury i.e., fracture of right femur, but the Doctor has stated that the claimant suffers 60% disability to a particular limb and 30% disability to the whole body without any basis. The evidence of PW.2 cannot be believed. The Tribunal based on the medical records has rightly assessed the whole body disability at 14% which needs no interference.
10. Having heard the learned counsels for the parties and on going through the judgment and award passed by the Tribunal, the following points would arise for consideration in the facts and circumstances of the case;
a) Whether the Tribunal is justified in saddling the liability on the respondent No.1 - Owner?
b) Whether the claimant would be entitled for enhanced compensation?
Answer to the point (a) is in the negative and point (b) is in the affirmative for the following reasons.
11. The accident occurred on 10.03.2010 involving motorcycle bearing Reg.No.KA-05-EP-729, Auto Rickshaw bearing Reg.No.KA-42-4511 and accidental injuries suffered by the claimant are not in dispute in this appeal. The claimant is in appeal praying for enhancement for compensation and also aggrieved by saddling the liability on respondent No.1 - owner of the auto rickshaw. The Tribunal on the ground that the driver of the auto rickshaw had no valid and effective driving license to drive LMV transport vehicle saddled the liability on respondent No.1.
Ex.R.3 - Copy of the Driving License Extract of the driver of the auto rickshaw would establish that the driver had LMV-NT license as on the date of accident. The Hon’ble Apex Court in the case of MUKUND DEWANGAN stated supra clearly held that the driver possessing driving license to drive LMV-NT could also drive LMV (transport) vehicle of the same category. In the instant case, the driver of the auto rickshaw was possessing LMV-NT license and he could also drive the LMV transport vehicle. Therefore, saddling liability on the owner by the Tribunal is set aside and the liability is saddled on the respondent No.2-Insurer who is liable to indemnify respondent No.1.
12. The income of the claimant assessed by the Tribunal at Rs.3,000/- per month is on the lower side. Claimant states that he was working as auto rickshaw driver and to establish his avocation, the material placed on record is Ex.P.11-Notarised copy of the driving license. Thus, he has established that he was working as driver and his avocation is driving. But the claimant has not placed any material to indicate his exact income. In the absence of any material to indicate the exact income of the claimant, the Tribunal will have to assess the income notionally. This Court and the Lok Adalath while determining the compensation in Motor Vehicles Accident cases would normally take notional income for the accidents of the year 2010 at Rs.5,500/- per month. In the present case also, as there is no material on record to indicate the exact income of the claimant, it would be appropriate to take Rs.5,500/- per month as notional income of the claimant. The claimant has placed on record Ex.P.6 – Wound Certificate which indicates that the claimant has suffered fracture of right femur, lacerated wound over right knee front, right toe, great toe and other injuries all over his body. PW.2 – Doctor, who was examined on behalf of the claimant states that the claimant suffered 60% disability to a particular limb and 30% disability to the whole body. Looking to the injuries suffered and treatment taken as inpatient for 12 days and the evidence of Doctor, the claimant suffers 60% disability to a particular limb and 30% disability to the whole body is difficult to believe. The Tribunal looking to the evidence of the Doctor, medical records, the nature of the injuries suffered and treatment taken, rightly assessed the whole body disability at 14% which needs no interference. Thus, the claimant would be entitled for the following modified enhanced compensation;
1. Loss of income due to Amount in (Rs.) 1,57,080
13. Thus, the claimants would be entitled for total compensation of Rs.2,49,560/- as against Rs.2,10,480/- awarded by the Tribunal with interest at the rate of 8% per annum from the date of petition till the date of deposit. The Insurer shall deposit the entire compensation amount within a period of six months from the date of receipt of copy of this judgment.
14. The judgment and award of the Tribunal is modified to the above extent. Accordingly, the appeal is allowed in part.
This Court by its order dated 23.03.2018 condoned the delay of 702 days in preferring the appeal subject to the condition that the claimant would not be entitled to the interest for the delayed period. Accordingly, the claimant would not be entitled for interest for the delayed period of 702 days.
Sd/- JUDGE HA/-