IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 14TH DAY OF FEBRUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ M.F.A. NO.622/2014 C/W M.F.A.NOS.5666/2014, 623/2014 AND 5667/2014 IN MFA.NO.622/2014:
BETWEEN:
UNIVERSAL SOMPO GENERAL INSURANCE CO., LTD., CORPORATE OFFICE, UNIT 401 4TH FLOOR, SANGAM COMPLEX, 127 ANDHERI KURLA ROAD, ANDHERI (EAST) MUMBAI – 400 058.
REPRESENTED BY ITS BRANCH OFFICE K.V.D. TOWERS, II FLOOR, NO.7/3 ABOVE BARCLAYS FINANCE OLD MADRAS ROAD (KOLAR ROAD) OPP. 100 FEET ROAD, INDIRANAGAR BENGALURU – 560 038.
REPRESENTED BY ITS MANAGER. ... APPELLANT (BY SRI. RAVI S. SAMPRATHI, ADVOCATE) AND:
1. SRI. K.M. LAKSHMINARAYANA AGED ABOUT 43 YEARS S/O. SRI. MARIYAPPA C.R.P. EDUCATION DEPARTMENT RESIDING AT AREHALLI VILLAGE & HOBLI, BELUR TALUK – *573 115.
*Retyped and replaced vide court order dated 20.03.2020.
2. SRI. BASAVARAJU, MAJOR S/O. SRI. *CHANDRAIAH R/O. AREHALLI VILLAGE & POST BELUR TALUK, HASSAN DISTRICT–*573 201. ... RESPONDENTS (BY SRI. CHETHAN B., ADVOCATE FOR R1; R2 SERVED UNREPRESENTED) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT, PRAYING TO AGAINST THE JUDGMENT AND AWARD DATED 04.09.2013 PASSED IN MVC NO.212/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE & MACT, BELUR AWARDING A SUM OF RS.1,32,300/- WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION.
IN MFA.NO.5666/2014:
BETWEEN:
*SRI. K.M. LAKSHMINARAYANA S/O. MARIYAPPA AGED ABOUT 43 YEARS C.R.P. EDUCATION DEPARTMENT RESIDENT OF AREHALLI VILLAGE & HOBLI, BELUR TALUK – 573 115 HASSAN DISTRICT. ... APPELLANT (BY SRI. CHETHAN B., ADVOCATE) AND:
1. *BASAVARAJU S/O.CHANDRAIAH, MAJOR, RESIDENT OF AREHALLI VILLAGE & POST BELUR TALUK – 573 201.
HASSAN DISTRICT.
2. THE MANAGER UNIVERSAL SAMPO GENERAL INSURANCE * Retyped and replaced vide court order dated 20.03.2020.
CO., LTD., CORPORATE OFFICE, UNIT 401 4TH FLOOR, SANGAM COMPLEX, 127 ANDHERI KURLA ROAD, ANDHERI-EAST, MUMBAI – 400 058. ... RESPONDENTS (BY SRI. RAVI S. SAMPRATHI, ADVOCATE FOR R2; R1-SERVICE OF NOTICE IS DISPENSED WITH) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT, PRAYING TO AGAINST THE JUDGMENT AND AWARD DATED 04.09.2013 PASSED IN MVC NO.212/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE & MACT, BELUR, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
IN MFA.NO.623/2014:
BETWEEN:
UNIVERSAL SOMPO GENERAL INSURANCE CO., LTD., CORPORATE OFFICE, UNIT 401 4TH FLOOR, SANGAM COMPLEX, 127 ANDHERI KURLA ROAD, ANDHERI (EAST) MUMBAI – 400 058.
REPRESENTED BY ITS BRANCH OFFICE K.V.D. TOWERS, II FLOOR, NO.7/3 ABOVE BARCLAYS FINANCE OLD MADRAS ROAD (KOLAR ROAD) OPP. 100 FEET ROAD, INDIRANAGAR BENGALURU – 560 038.
REPRESENTED BY ITS MANAGER. ... APPELLANT (BY SRI. RAVI S. SAMPRATHI, ADVOCATE) AND:
1. SRI. THIMMASHETTY AGED ABOUT 35 YEARS * Retyped and replaced vide court order dated 20.03.2020.
S/O. SRI. VENKATASHETTY RESIDING AT SOORUKODU VILLAGE VENKATIPETE POST BELUR TALUK – *573 115.
2. SRI. BASAVARAJU, MAJOR S/O. SRI. *CHANDRAIAH R/O. AREHALLI VILLAGE & POST BELUR TALUK HASSAN DISTRICT–*573 201. ... RESPONDENTS (BY SRI. CHETHAN B., ADVOCATE FOR R1; R2 SERVED UNREPRESENTED) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT, PRAYING TO AGAINST THE JUDGMENT AND AWARD DATED 04.09.2013 PASSED IN *MVC NO.213/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE & MACT, BELUR AWARDING A SUM OF RS.1,26,100/- WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION.
IN MFA.NO.5667/2014:
BETWEEN:
THIMMASHETTY S/O. VENKATASHETTY AGED ABOUT 35 YEARS RESIDING AT SOORUKODU VILLAGE VENKATIPETE POST BELUR TALUK – *573 115.
HASSAN DISTRICT. ... APPELLANT (BY SRI. CHETHAN B., ADVOCATE) AND:
1. SRI. BASAVARAJU S/O. *CHANDRAIAH * Retyped and replaced vide court order dated 20.03.2020.
MAJOR RESIDING OF AREHALLI VILLAGE & POST BELUR TALUK – *573 115 HASSAN DISTRICT.
2. THE MANAGER UNIVERSAL SAMPO GENERAL INSURANCE CO., LTD., CORPORATE OFFICE, UNIT 401 4TH FLOOR, SANGAM COMPLEX, 127 ANDHERI KURLA ROAD, ANDHERI-EAST MUMBAI – 400 058. ... RESPONDENTS (BY SRI. RAVI S. SAMPRATHI, ADVOCATE FOR R2; R1-SERVICE OF NOTICE IS DISPENSED WITH) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT, 1939 PRAYING TO AGAINST THE JUDGMENT AND AWARD DATED 04.09.2013 PASSED IN MVC NO.213/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE & MACT, BELUR, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE MFA’s COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
J U D G M E N T Though these appeals are listed for admission, with the consent of both the learned counsel, the appeals are taken up for final disposal.
2. These appeals are directed against the common judgment and award dated 04.09.2013 * Retyped and replaced vide court order dated 20.03.2020.
passed in M.V.C.Nos.212/2012 and 213/2012 on the file of Senior Civil Judge and MACT, Belur.
3. M.F.A.No.622/2014 and M.F.A.No.623/ 2014 are preferred by the Insurance Company challenging the liability and M.F.A.No.5666/2014 and M.F.A.No.5667/2014 are filed by the claimants seeking enhancement of compensation awarded in M.V.C.Nos.212/2012 and 213/2012 respectively.
4. I have heard the learned counsel appearing on both sides.
IN M.F.A. NO. 622/2014 and M.F.A. NO.5666/2014: IN MFA No.622/2014:
5. Brief facts of the case are that on 24.11.2011 at about 11:30 A M, the injured claimants were going on Bajaj CT-100 bike bearing registration No.KA-46 E-6786 when they were near Arehally Village in front of Tailor Srinivasan’s House, an Auto Rickshaw bearing registration No.KA-46-2516 being driven by its driver in a rash and negligent manner, dashed against the bike and due to the same, both the rider and pillion rider sustained injuries.
6. The accident in question and the claimants sustaining injuries in the said accident and also the offending vehicle having been insured is not in dispute. However, learned counsel appearing for the appellant-Insurance Company would vehemently contend that the driver of the Auto Rickshaw in question was holding a Driving License to drive only light motor vehicle and not a transport vehicle and there is no endorsement in the Driving License to drive a transport vehicle and therefore, the finding of the Tribunal holding the Insurance Company liable to pay the compensation is erroneous.
IN MFA No.5666/2014:
7. Learned counsel for the claimant would contend that the injured claimants have suffered fractures namely fracture of patella, fracture of tibual plates and lateral condyle and submits that the compensation awarded under the head ‘Pain and Suffering’ is on the lower side. It is further submitted that according to the Doctor, there is disability of 24.13%. However, the Tribunal has not awarded any sum towards ‘Loss of Future Income’. On the other hand, awarded a sum of Rs.30,000/- towards permanent disability and Rs.15,000/- towards ‘Loss of Amenities’ which are also on the lower side. Accordingly, he seeks to enhance the compensation awarded by the Tribunal.
8. It is the case of the claimant that he was a Government employee in C.R.P., Education Department and he was earning a sum of Rs.18,724/- per month after deducting Professional Tax. That he has not been awarded any compensation under the head loss of income due to disability. However, it has come in the evidence that he was not deprived from payment of salary either during his laid up period in hospital or there was any deduction of salary as he has been continued in service. It is no doubt true the Doctor has opined that the functional disability due to accident is to an extent of 24.13%. However, admittedly, there is no termination from service and the claimant has admitted that he has been continued in the same post and the permanent disability has not affected his monthly salary.
9. The Tribunal after placing reliance on the judgment reported in ‘2011 ACJ P-1131’ in the case of ‘Subhash vs. National Insurance Company and others’, has held that the claimant is not entitled for any compensation under the head ‘Future Loss of Income’. However, he is entitled for compensation under the head ‘Permanent Disability’. The evidence on record discloses that the claimant sustained lacerated wound on right forehead 2x1 cm., actively bleeding, abrasion over right shoulder 6x3 cm., and over right chest, penetrating injury over right knee joint with fracture of patella, fracture of tibual plates and lateral condyle. The medical evidence discloses that there is a functional disability due to accident to an extent of 24.13%. Considering the same, Rs.30,000/- awarded by the Tribunal under the head ‘Permanent Disability’ and Rs.15,000/- awarded under the head ‘Loss of Amenities’, are on the lower side. Considering the evidence on record, the total compensation awarded for permanent disability and loss of amenities are enhanced from Rs.45,000/- to Rs.75,000/-.
10. The Tribunal has awarded a sum of Rs.12,000/- towards special diet, nursing, extra nourishment and conveyance charges, etc. The same is enhanced to Rs.20,000/- and Rs.2,300/- awarded under the head ‘Attendant Charges’ is enhanced to Rs.5,000/-.
11. The Tribunal has awarded a sum of Rs.54,000/- towards ‘Pain and Suffering’. Considering the nature of injuries, the same is enhanced to Rs.65,000/-.
12. The Tribunal has awarded a sum of Rs.10,000/- towards ‘Future Medical Expenses’. In this regard, the evidence of PW3 shows that after getting admitted in the hospital, the claimant underwent surgery on 26.11.2011 i.e., ORIF and implant 4mm titanium screws for tibial plateau fracture right under SAB. It is stated that the claimant requires another surgery i.e., removal of implant as per the evidence of PW3 which has not been disputed. In the said circumstances, Rs.10,000/- awarded under the head ‘Future Medical Expenses’ is enhanced to Rs.20,000/-. Compensation awarded towards medical expenses in a sum of Rs.9,000/- is enhanced to Rs.10,000/- in view of 5 medical bills totalling Rs.9,830/-. Hence, in all, the claimant is entitled for a total compensation of Rs.1,95,000/- as against Rs.1,32,300/- awarded by the Tribunal.
In MFA No.5667/2014 13. MFA No.5667/2014 is filed by the injured/claimant in MVC No.213/2012, wherein the Tribunal awarded a total compensation of Rs.1,26,100/- for the injuries sustained by him.
14. The contention of the learned counsel for the injured/claimant is that the claimant was an agriculturist and a coolie. He was earning a sum of Rs.15,000/- p.m. and therefore he submits that the income taken by the Tribunal at Rs.4,500/- p.m is on the lower side. He further submits that the claimant has suffered right peri- orbital swelling with sutured lacerated wound over right eye brow, C.T. scan head shows sub-arachnoid hemorrhage and therefore Rs.30,000/- awarded under the head of pain and sufferings is also inadequate. He submits that the compensation awarded under other heads is also on the lower side and also that the Tribunal has erred in not awarding any compensation towards future medical expenses. Accordingly, learned counsel seeks to allow the appeal by enhancing the compensation awarded by the Tribunal.
15. Learned counsel for the Insurance Company, on the otherhand, submits that the compensation awarded by the Tribunal considering the evidence and material on record does not call for any interference.
16. According to the claimant, he was earning a sum of Rs.15,000/- p.m. by doing agricultural and coolie work. The Tribunal has taken the monthly income of the claimant at Rs.4,500/- p.m. However, considering that the accident is of the year 2011, I deem it appropriate to take the notional income of the claimant at Rs.6,500/- p.m.
17. The evidence on record shows that the claimant was an inpatient for a period of twelve days. According to Ex.P5 – wound certificate, which reveals that he sustained right peri-orbital swelling with sutured lacerated wound over right eye brow. C.T.scan head shows sub-arachnoid hemorrhage and he was shifted to Justice K S Hegde Charitable Hospital, Deralakatte. Considering the nature of injuries suffered by the claimant, he is awarded a compensation of Rs.40,000/- towards pain and suffering. The Tribunal has awarded a sum of Rs.18,000/- towards nursing, extra nourishment and conveyance and the same is enhanced to Rs.30,000/-. The Tribunal has awarded a sum of Rs.3,600/- towards attendant charges and the same is enhanced to Rs.5,000/-. The compensation awarded towards loss of earning during treatment period is enhanced from Rs.4,500/- to Rs.13,000/-. Compensation of Rs.30,000/- awarded towards medical expenses is undisturbed.
18. Insofar as the loss of future earning and loss of amenities are concerned, the Tribunal has awarded a sum of Rs.40,000/-. In this regard, it is seen that the claimant has not adduced any evidence to show that there was any disability on account of injuries sustained by him. The evidence of CW1, Dr.Anantha Hegde, goes to show that on 28.11.2011 repeat C.T.Scan of the brain was done which showed resolving SAH. Patient was treated consecutively with medicine and was discharged on 5.12.2011. At the time of discharge patient was fully conscious oriented with no weakness of upper or lower limbs. He was asked for followup in neuro OPD at regular months. On followup in the subsequent months, patient has no gross neurological deficiencies, but has mild paraesthesia in the left upper and lower limb. Considering the said evidence, the compensation awarded under the head of loss of future earning and loss of amenities is enhanced from Rs.40,000/- to Rs.60,000/-. Hence, the claimant/injured is entitled for a compensation of Rs.1,78,000/- as against Rs.1,26,100/- awarded by the Tribunal.
19. The contention of the learned counsel appearing for the Insurance Company is that there was no valid and effective driving license held by the driver of the offending autorickshaw, which caused the accident and therefore the Insurance Company is not liable to pay the compensation since the driver of autorickshaw was having LMV driving license and not transport vehicle.
20. The contention raised as above cannot be accepted in view of the decision of the Hon’ble Apex Court in the case of Mukund Dewangan –vs- Oriental Insurance Co. Ltd. reported in 2017 ACJ 2011, wherein it has been held at para 46 as under:
”46. Section 10 of the Act requires a driver to hold a licence with respect to the class of vehicles and not with respect to the type of vehicles. In one class of vehicles, there may be different kinds of vehicles. If they fall in the same class of vehicles, no separate endorsement is required to drive such vehicles. As light motor vehicle includes transport vehicle also, a holder of light motor vehicle licence can drive all the vehicles of the class including transport vehicles. It was pre- amended position as well the post-amended position of Form 4 as amended on 28.3.2001. Any other interpretation would be repugnant to the definition of “light motor vehicle” in section 2(21) and the provisions of section 10(2)(d), Rule 8 of the Rules of 1989, other provisions and also the forms which are in tune with the provisions. Even otherwise the forms never intended to exclude transport vehicles from the category of ‘light motor vehicles’ and for light motor vehicle, the validity period of such licence hold good and apply for the transport vehicle of such class also and the expression in Section 10(2)(e) of the Act ‘Transport Vehicle’ would include medium goods vehicle, medium passenger motor vehicle, heavy goods vehicle, heavy passenger motor vehicle which earlier found place in section 10(2)(e) to (h) and our conclusion is fortified by the syllabus and rules which we have discussed. Thus we answer the questions which are referred to us thus:
(i) ‘Light motor vehicle’ as defined in section 2(21) of the Act would include a transport vehicle as per the weight prescribed in section 2(21) read with section 2(15) and 2(48). Such transport vehicles are not excluded from the definition of the light motor vehicle by virtue of Amendment Act No.54/1994.
(ii) A transport vehicle and omnibus, the gross vehicle weight of either of which does not exceed 7500 kg. would be a light motor vehicle and also motor car or tractor or a road roller, ‘unladen weight’ of which does not exceed 7500 kg. and holder of a driving licence to drive class of “light motor vehicle” as provided in section 10(2)(d) is competent to drive a transport vehicle or omnibus, the gross vehicle weight of which does not exceed 7500 kg. or a motor car or tractor or road-roller, the “unladen weight” of which does not exceed 7500 kg. That is to say, no separate endorsement on the licence is required to drive a transport vehicle of light motor vehicle class as enumerated above. A licence issued under section 10(2)(d) continues to be valid after Amendment Act 54/1994 and 28.3.2001 in the form.
(iii) The effect of the amendment made by virtue of Act No.54/1994 w.e.f. 14.11.1994 while substituting clauses (e) to (h) of section 10(2) which contained “medium goods vehicle” in section 10(2)(e), medium passenger motor vehicle in section 10(2)(f), heavy goods vehicle in section 10(2)(g) and “heavy passenger motor vehicle” in section 10(2)(h) with expression ‘transport vehicle’ as substituted in section 10(2)(e) related only to the aforesaid substituted classes only. It does not exclude transport vehicle, from the purview of section 10(2)(d) and section 2(41) of the Act i.e. light motor vehicle.
(iv) The effect of amendment of Form 4 by insertion of “transport vehicle” is related only to the categories which were substituted in the year 1994 and the procedure to obtain driving licence for transport vehicle of class of “light motor vehicle” continues to be the same as it was and has not been changed and 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.”
For the foregoing reasons, I pass the following:
ORDER MFA No.622/2014 and MFA No.623/2014 filed by the Insurance Company are hereby dismissed.
MFA No.5666/2014 and MFA No.5667/2014 filed by the claimants are hereby allowed in part.
In MFA No.5666/2014, the appellant is entitled for a total compensation of Rs.1,94,000/- as against Rs.1,32,300/- awarded by the Tribunal with interest at 6% p.a. from the date of petition till the date of realization.
In MFA No.5667/2014, the appellant is entitled for a total compensation of Rs.1,78,000/- as against Rs.1,26,100/- awarded by the Tribunal with interest at 6% p.a. from the date of petition till the date of realization.
The Insurance Company shall be liable to pay the compensation in both the appeals and the same shall be deposited within a period of four weeks from the date receipt of a copy of this judgment.
The amount in deposit made in both the appeals filed by the Insurer before this Court shall be transmitted to the Tribunal concerned.
Sd/- JUDGE KA/BKM