IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE H.P. SANDESH M.F.A.No.3928/2012 (MV) C/W M.F.A.No.6863/2012 (MV) IN M.F.A. No.3928/2012 BETWEEN:
UNITED INDIA ASSURANCE CO., LTD., REGIONAL OFFICE SHANKAR NARAYAN BUILDING M.G.ROAD BENGALURU-560 001 REP. BY ITS MANAGER UNITED INDIA ASSURANCE CO., LTD., REGIONAL OFFICE 5TH FLOOR, KRISHI BHAVAN HUDSON CIRCLE BENGALURU-560 002. … APPELLANT (BY SRI MOHAN KUMAR T, ADVOCATE) AND:
1. SRI MEHBOOB PASHA S/O. SRI BASHA SAB AGED ABOUT 51 YEARS R/O. SANNASETTIHALLI 6TH CROSS, CHINTHAMANI TOWN CHIKKABALLAPUR DISTRICT-563125.
2. SRI VENKATARAMANAPPA S/O. SRI G.KONDAPPA MAJOR R/O. KATTIGENAHALLI VILLAGE CHILAKALANERPU HOBLI CHINTAMANI TALUK CHIKKABALLAPUR DISTRICT-563125 ... RESPONDENTS (BY SRI N.GOPAL KRISHNA, ADVOCATE FOR R2 R1 SERVED) THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 09.12.2011 PASSED IN MVC.NO.2958/2009 ON THE FILE OF THE VIII ADDITIONAL JUDGE, COURT OF SMALL CAUSES, MEMBER, MACT, BENGALURU, AWARDING A COMPENSATION OF RS.70,500/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL DEPOSIT IN COURT.
IN M.F.A. No.6863/2012 BETWEEN:
SRI MEHBOOB PASHA S/O. BASHA SAB AGED ABOUT 51 YEARS R/O. SANNA SETTIHALLI 6TH CROSS, CHINTAMANI TOWN CHIKKABALLAPURA DISTRICT. … APPELLANT (BY SRI N.GOPAL KRISHNA, ADVOCATE) AND :
1. SRI K. VENKATARAMANAPPA S/O. G.KONDAPPA MAJOR IN AGE R/O. KATTIGENAHALLI VILLAGE CHILAKALANERPU HOBLI CHINTAMANI TALUK CHIKKABALLAPURA DISTRICT 2. M/S. UNITED INDIA INSURANCE CO., LTD., REGIONAL OFFICE SHANKARANARAYANA BUILDING M.G.ROAD BENGALURU-560 001 REP. BY ITS MANAGER. … RESPONDENTS (BY SRI K.N.SHIVA REDDY, ADVOCATE FOR R1 SRI MOHAN KUMAR T, ADVOCATE FOR R2) THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 09.12.2011 PASSED IN MVC.NO.2958/2009 ON THE FILE OF THE VIII ADDITIONAL JUDGE, COURT OF SMALL CAUSES, MEMBER, MACT, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE M.F.As. COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T The Miscellaneous First Appeal No.3928/2012 is filed by the Insurance Company questioning the fastening of liability on the Company, and the Miscellaneous First Appeal No.6863/2012 is filed by the claimant questioning the quantum of compensation awarded in M.V.C. No.2958/2009 dated 9.12.2011 on the file of Member MACT, VIII Additional Judge, Court of Small Causes, Bengaluru City (MACT-V).
2. Parties are referred to as per their original rankings before the Tribunal to avoid confusion and for the convenience of the Court.
3. The brief facts of the case:-
On 11.02.2009, the claimant was proceeding in an auto rickshaw which was under repair, thereby, another car was pulling the auto, the auto was tied to the car, during that time, at about 3.30 p.m., near Chinthamani Chaluru Road, one Tractor and Trailer bearing registration Nos.KA-07-T-5183 and 5184 came in a rash and negligent manner and dashed against the auto rickshaw. Due to impact of the said accident, the petitioner sustained grievous injuries. It is also his case that he was earning Rs.7,000/- per month and due to the accident, he is permanently disabled and could not go to his avocation and hence, he is entitled for compensation. The Insurance Company appeared through its counsel and filed written statement denying the averments made in the claim petition and further contended that the owner of the Tractor and Trailer has insured the vehicle with the 2nd respondent and the said accident occurred due to rash and negligent driving of the car driver. The Insurance Company also took the contention that the driver was not holding valid and effective driving license. Hence, the Insurance Company is not liable to pay compensation to the petitioner.
4. The claimant-owner to substantiate his claim, examined himself as PW.1 and got marked documents Exs.P1 to P10 and also examined the Doctor as PW.2 with regard to disability. The Insurance Company also examined two witnesses RWs.1 and 2 and got marked documents Exs.R1 to R4. The Tribunal considering both oral and documentary evidence allowed the claim petition in part granting compensation of Rs.70,500/- with interest at the rate of 6% per annum from the date of petition till the date of deposit in Court.
5. Being aggrieved by the judgment and award of the Tribunal, both the Insurance Company as well as the claimant have filed these two appeals.
6. The main contention of the Insurance Company in M.F.A. No.3928/2012 is that though the driver of the Tractor and Trailer was not having a transport endorsement on his license, the Tribunal has committed an error in fastening the liability on the Insurance Company and hence, it requires interference of this Court.
7. The claimant in M.F.A.No.6863/2012 would contend that the compensation awarded by the Tribunal is very meager and the Tribunal ought to have awarded compensation under all heads and hence, it requires interference of this Court.
8. Having heard the arguments of learned counsel appearing for the claimant and also the learned counsel appearing for the Insurance Company with regard to their contentions, the points that arise for consideration of this Court are :-
1. Whether the Tribunal has committed an error in fastening the liability on the Insurance Company and it requires interference of this Court?
2. Whether Tribunal has committed an error in not awarding any just and reasonable compensation in favour of the claimant and it requires interference of this Court?
3. What order?
9. Point No.1:- The main contention of the Insurance Company is that the driver of the tractor and trailer was having only the LMV license and he was not having the transport endorsement on his license. Hence, the liability cannot be fastened on the Insurance Company. The said contention of the Insurance Company cannot be accepted in view of the recent judgment of the Hon’ble Apex Court in the case of MUKUND DEWANGAN V. ORIENTAL INSURANCE CO., LTD., reported in AIR 2017 SC 3668 and hence, the appeal filed by the Insurance Company cannot be sustained and therefore, it is liable to be dismissed.
10. Point No.2:- On perusal of the records available before the Court, it is evident that considering the nature of injuries, the claimant has suffered fracture of shaft of right humorous, he was treated clinically and not subjected to any surgery and the accident is of the year 2009, the Tribunal has awarded an amount of Rs.20,000/- towards ‘pain and agony’. Having considered the fact that the accident has occurred in the year 2009, it appears that the amount awarded under the head of ‘pain and agony’ is on the lower side and it requires to be enhanced to Rs.30,000/- as against Rs.20,000/-. Accordingly, the same is modified.
11. With regard to the compensation awarded under the head of ‘medical expenses (including conveyance, attendants charges and extra nourishment)’, the Tribunal has awarded an amount of Rs.25,000/- based on the medical necessities. Hence, it requires no interference of this Court.
12. With regard to the compensation awarded under the head of ‘loss of income during treatment period’, the Tribunal taking note of the income of the claimant at Rs.3500/- per month and considering the fracture, has taken the period of three months for calculating the loss of income. It is to be noted that the accident has taken place in the year 2009. The Tribunal ought to have taken Rs.5000/- as notional income, but has taken only Rs.3500/- per month. It is also to be noted that he sustained fractures and for uniting the said fractures, minimum three months is required and he also need rest after uniting the said fractures, but the Tribunal has failed to consider the same. Hence, this Court has considered the laid up period for four months instead of three months and enhanced the compensation awarded to the tune of Rs.20,000/- as against Rs.10,500/-.
13. The Tribunal has awarded an amount of Rs.15,000/- under the head of ‘loss of amenities and unhappiness’. The claimant has also examined the Doctor as PW.2, in his evidence, he says that he has suffered disability to a particular limb to an extent of 40% and the disability to an extent of 20% to the whole body. The Tribunal has not considered any of the disability by disbelieving the evidence of Doctor. Having taken note of the fact that he is aged about 48 years and has to lead rest of his life with that disability, the compensation awarded to the tune of Rs.15,000/- as loss of amenities is very meager and the same requires to be enhanced to Rs.25,000/-. Accordingly, the same is modified.
14. The Tribunal has not considered the ‘future loss of income’ by disbelieving the evidence of the Doctor. The fact that he has suffered fracture of shaft of right humorous is not in dispute. The Doctor in his evidence has deposed that he has taken 50% of the particular limb disability as permanent disability and the same is also on the higher side. The Tribunal has committed an error in not taking the disability of the claimant. Having taken his income at Rs.5000/- per month and also taking note of the fracture of shaft of right humorous, the Tribunal ought to have taken atleast 9% of the disability. The Tribunal has committed an error in not taking the disability and it requires to be reconsidered. Hence, this Court has taken the disability at 9% for fracture of shaft of right humorous and has considered his income at Rs.5000/- i.e., Rs.5000x12x13x9/100=Rs.70,200/- is awarded as compensation under the head of ‘future loss of income’.
15. On perusal of the judgment and award, it is clear that the Tribunal did not award any compensation under the head of expenses, food and nourishment and incidental expenses including traveling expenses and the record discloses that he was inpatient for 10 days. Hence, the claimant is entitled for a minimum compensation of Rs.10,000/- under the head of expenses including food, nourishment, traveling expenses and other incidental expenses.
In view of discussions made above, I pass the following:
ORDER (i) M.F.A. No.3928/2012 filed by the Insurance Company is dismissed.
(ii) M.F.A. No.6863/2012 filed by the claimant is allowed in part.
(iii) The judgment and award of the Tribunal passed in M.V.C. No.2958/2009 dated 9.12.2011 on the file of Member MACT, VIII Additional Judge, Court of Small Causes, Bengaluru City (MACT-V) is modified by awarding an amount of Rs.1,80,200/- as against Rs.70,500/- at the rate of 6% per annum from the date of petition till the date of payment.
(iv) The other portion of the judgment and award of the Tribunal remains unaltered.
(v) Office is directed to transmit the amount in deposit to the Tribunal forthwith.
PYR Sd/- JUDGE