IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF DECEMBER 2019 BEFORE THE HON’BLE MR.JUSTICE H.P. SANDESH M.F.A.No.6246 of 2012 (MV) BETWEEN:
MR. VINAYAKUMAR.G.S. S/O SIDDALINGAPPA AGED ABOUT 44 YEARS, R/A NO.61/87, GOVINDAPPA ROAD, BASAVANAGUDI BENGALURU-560 004. .. APPELLANT (BY SMT: P.V. KALPANA, ADVOCATE) AND:
1. MR. RAVI.M KODATHI VILLAGE, CARMELROM POST, BENGALURU-560035.
2. THE MANAGER, BAJAJ ALLIANZ GENERAL INSURANCE CO., LTD., NEW MISSION ROAD, NO.31, TBR TOWERS, ADJACENT TO JAIN COLLEGE, BENGALURU.
.. RESPONDENTS (BY SMT: H.R. RENUKA, ADVOCATE FOR R2, R1-SERVED) ---
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGEMENT AND AWARD DATED: 02.01.2012 PASSED IN MVC.NO.6566/2010 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 COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
J U D G M E N T This appeal is filed challenging the judgment and award passed in MVC No.6566/2010 dated 2nd Day of January 2012 on the file of III Addl. Senior Civil Judge and MACT, Bengaluru (SCCH-18), questioning the quantum of compensation and also exonerating the liability of the Insurance Company and fastening the liability on the owner.
2. The factual matrix of the case are, that on 28.08.2008, at about 3.30 p.m., the appellant/claimant was riding motorcycle bearing No.KA-05-EW-2696 near Lalbagh West Gate Circle, Basavanagudi, Bengaluru, to go to his house, in a slow and cautious manner and at that time, the driver of the car bearing No.KA-51-5017 came in a rash and negligent manner and dashed against the appellant’s vehicle and dragged him to the distance of 30 feet, resulting in which, the appellant has sustained hairline fracture, anterior body of calcaneum, cuniaform bone and chip fracture base of proximal phalanx of first toe, abrasion over right hand, laceration wound over left hypothenar region, lacerated wound over left foot, abrasion over left knee. He was shifted to Bharathi Nursing Home, Bengaluru immediately and he took treatment as an inpatient for three days. Thereafter, he took treatment at Victoria Hospital, Bengaluru. He has taken regular follow-up treatment after discharge and due to the injuries, he has suffered permanent disability. He was earning Rs.20,000/- per month as a practicing Advocate. In pursuance of the claim petition, the Insurance Company appeared and filed its written statement, contending that the liability is subject to the terms and conditions of the policy and also subject to the validity of the driving license.
3. The claimant in order to substantiate his contention, he examined himself as PW-1 and got marked the documents as Exs-P1 to P20. The claimant also examined the Doctor as PW.2. Respondent No.2- Insurance Company examined one of its officials as RW-1 and got marked Exs-R1 to R3. The Tribunal on considering both oral and documentary evidence allowed the claim petition in part, granting compensation of Rs.3,99,200/- with interest at 8% per annum and fastened the liability on the insured and exonerated the liability against the Insurance Company. Hence, the present appeal is filed before this Court by the claimant questioning the quantum as well as fastening the liability against the owner.
4. The main contention of the learned counsel appearing for the appellant is that, the compensation awarded is very meager and the Tribunal did not consider both the oral and documentary evidence and also not taken into account the nature of the injuries and period of treatment. It is also his contention that the Tribunal has committed an error in fastening the liability on the owner on the ground that the driver was not having valid and effective driving licence as on the date of accident. The learned counsel reiterates the grounds urged in the appeal memo and would contend that compensation awarded is very meager and liability fastened against the owner is not correct and same has to be fastened against the Insurance Company.
5. Per contra, learned counsel for the respondent No.2 would contend that no case is made out for enhancement of compensation and same has to be reduced since the Tribunal has awarded amount of Rs.20,000/- under the head of permanent disability. That the compensation towards loss of future earning was already awarded under of head loss of future earning on account of permanent disability and also the Tribunal awarded 8% per annum interest and there was no occasion for the Insurance Company to file the appeal since the Insurance Company was exonerated.
6. Having heard the arguments of the appellant’s counsel and also the second respondent’s counsel and also keeping in view the contentions urged by both the parties, the points that arise for consideration of this Court are:-
1. Whether the court below has committed an error in not awarding just and reasonable compensation and whether it requires interference of this Court?
2. Whether the court below has committed an error in fastening liability on the owner instead of Insurance Company and whether it requires interference of this Court?
3. What order?
Point No.1 7. Having taken note of the pleadings of the claimants and also evidence of the Insurance Company and also considering both the oral and documentary evidence, the Tribunal has awarded amount of Rs.50,000/- towards pain and suffering, Rs.17,100/- towards medical expenses based on the documentary evidence and also awarded compensation of Rs.50,000/- under the head of loss of earning during laid up period and Rs.2,21,760/- towards loss of future earning and apart from that, Rs.25,000/- towards loss of amenities and Rs.10,000/- towards attendant charges. The Tribunal also awarded an amount of Rs.20,000/- under the head of permanent disability. The Tribunal also awarded an amount of Rs.5,250/- towards vehicle repair charges.
8. Having considered the nature of injuries and also the compensation awarded under different heads, I do not find any error committed by the court below. The Tribunal has taken note that the claimant/appellant is an Advocate by profession and taken income of Rs.16,500/- per month, he is an income tax payee and also taken disability at 8% to the whole body. When such being the case, there are no grounds to enhance the compensation as claimed by the appellant’s counsel.
9. However, learned counsel for the respondent No.2 would contend that, when the Tribunal has taken note of loss of future income and also loss of income during laid up period, awarding of compensation under the head of permanent disability does not arise.
10. There is force in the contention of the second respondent’s counsel that the Tribunal has committed an error in awarding amount of Rs.20,000/- under the head of permanent disability and the same has to be deducted. Hence, I answer point No.1 in “Negative” and order to deduct Rs.20,000/- awarded under the head of “permanent disability”.
Point No.2 11. The contention of the appellant’s counsel that the Tribunal has committed an error in exonerating the Insurance Company and fastening the liability on the insured on the ground that, the Tribunal considering both the oral and documentary evidence and also the evidence of RW.1 and contents of Ex.R2 the offending vehicle driver R.Nanjundachari had possessed driving licence to drive LMV (NT) only. He has not possessed driving licence to drive LMV (transport). In view of the recent judgment in MUKUND DEWANGAN vs. ORIENTAL INSURANCE CO. LTD., reported in AIR 2017 SCW 3668, wherein the Hon’ble Apex Court has held that the Insurance Company is liable to pay compensation and when such being the ratio laid down in the judgment, the liability has to be fastened on the Insurance Company and not against the owner/insured and hence, the direction given against the insured to pay the compensation amount requires to be modified and liability has to be fastened against the Insurance Company and hence, I answer point No.2 in “affirmative”.
12. In view of the discussion above, I pass the following:-
ORDER Appeal is allowed-in-part. The impugned judgment and award passed in MVC No.6566/2010 dated 2nd Day of January 2012 on the file of III Addl. Senior Civil Judge and MACT, Bengaluru (SCCH-18) is modified, awarding compensation of Rs.3,79,200/- as against Rs.3,99,200/- awarded by the Tribunal. The Insurance Company is directed to pay the compensation amount within a period of eight weeks from today.
Sd/- JUDGE Bss.