Karnataka High Court
Sri Binil P U vs Sunil Kumar B on 28 September, 2022
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
1 MFA NO.9216/2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF SEPTEMBER ,2022
BEFORE
THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR
M.F.A.NO.9216/2015 (MV-I)
BETWEEN:
SRI. BINIL P.U.,
S/O M. PAREETH,
AGED ABOUT 31 YEARS,
RESIDING AT NO.23, BHAGYAMMA,
BUILDING (PAPPA REDDY)
BENAHALLI ROAD,
RAMAIAH LAYOUT, CHANDAPURA,
BENGALURU-560081
... APPELLANT
(BY SMT. BHARMAL SHIRIN SHABBIR BHAI, ADVOCATE
FOR SRI.N.PRAKAHS, ADVOCATE)
AND:
1. SUNIL KUMAR B.,
S/O BHARA REDDY,
NO.193, KITHAGANAHALLI,
BOMMASANDRA-POST,
ANEKAL TALUK,
BENGALURU RURAL-560 099.
2. ROYAL SUNDARAM ALLINACE
INSURANCE CO. LTD.,
"SUNDARAM TOWRS', NO.45 & 46,
WHITES ROAD,
CHENNAI-600014.
ALSO AT:
ROYAL SUNADARAM ALLINACE
2 MFA NO.9216/2015
INSURANCE CO. LTD.,
NO.21, PATTULLOS ROAD,
CHENNAI - 600 002.
... RESPONDENTS
(BY SRI.RAVI S. SAMPRATHI, ADVOCATE FOR R2,
R1-SERVED, UNREPRESENTED)
THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD
DATED:04.09.2015 PASSED IN MVC NO.3612/2014 ON
THE FILE OF THE MEMBER MACT, XVI ADDL. JUDGE,
COURT OF SMALL CAUSES, BANGALORE, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION AND
ETC.,
THIS M.F.A. COMING ON FOR FURTHER ARGUMENTS
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed under Section-173(1) of the Motor Vehicles Act 1988 (hereinafter referred to as 'MV Act' for brevity) by the appellant-claimant, challenging the judgment and award dated 04.09.2015, passed in M.V.C. No.3612/2014, on the file of the Motor Accident Claims Tribunal at Bengaluru, (hereinafter referred to as 'the Tribunal' for brevity) seeking enhancement of compensation as 3 MFA NO.9216/2015 well as questioning the liability fastened on the owner of the offending vehicle.
2. Brief facts:
On 13.05.2013 at around 3.00 p.m., the claimant was riding his Suzuki access motor cycle bearing registration No.KA-51-EF-6300 from Chandapura towards Electronic City on Hosur- Bangalore (NH-7). When he came near SBI, Hennagere, suddenly Truck bearing no.KA-51-A-7879, driven by its driver with high speed in rash and negligent manner, endangering human life, came and dashed against the claimant vehicle from backside. Due to the sudden impact, the claimant was unable to control his two wheeler and fell down. His head hit to the road side stone. The two wheeler was completely damaged. Due to the accident, the claimant sustained grievous injuries on his head and right leg. He was admitted in Sparsh Hospital, Hosur Road, Bangalore from 13.05.2013 to 24.05.2013. 4 MFA NO.9216/2015 Thereafter, he went to his native place in Kerala and admitted in Holy Family Hospital at Thodupzha, Kerala.
3. Hence, a claim petition was filed by the appellant under Section-166 of the M.V. Act, claiming compensation for the injuries sustained in the accident. In pursuance of the Notice issued, respondent No.2-insurance company appeared through counsel and filed the statement of objections denying the averments made in the claim petition. However, respondent No.1 remained exparte.
4. The learned counsel for the claimant- appellant submitted that the amount of compensation awarded by the Tribunal is on the lesser side. Therefore, prays for enhancement of compensation. Further, submitted that the Tribunal has erroneously exonerated the insurance company from the liability. Therefore, prays to allow the appeal. 5 MFA NO.9216/2015
5. On the other hand, the learned counsel for the second respondent - insurance company vehemently submitted that the quantum of compensation awarded by the Tribunal is correct and justified, which needs no interference. Further, submitted that since the driver of the offending vehicle truck did not hold a valid driving license to drive a truck and was holding a driving license to drive a LMV. Therefore, the Tribunal by observing has correctly exonerated the insurance company from making the compensation, which also needs no interference. Therefore, prays to dismiss the appeal. Regarding Liability :
6. In the present case, admittedly, the claimant was hit by rash and negligently driving of the truck bearing No.KA-51-A-7879 by its driver. The respondent No.1 being owner of the truck remained absent before the Tribunal and also before this Court, inspite of service of notice. The Tribunal had 6 MFA NO.9216/2015 exonerated the insurance company on the ground that the driver of the truck was not holding valid Driving License to drive the truck, but was holding driving license to driver a motor cycle with gear LMV (NT) LMV (Transport) and a PSV (Bus). Therefore, the Tribunal opined that the driver of the offending vehicle did not hold a valid driving license to drive the truck. Therefore, on this ground the insurance company was exonerated from the payment of the compensation and thus fastened the liability on the owner of the truck.
7. Exhibit-P17 is the copy of the Driving License which proves that the driver of the offending truck was holding driving license to drive motor cycle with gear, LMV(NT), LMV (Transport) and PSV Bus. Therefore, the driver was holding the driving license to drive the class of vehicle which is Light Motor Vehicle and Bus. However, the offending vehicle is a truck which is heavy goods vehicle carrying goods. 7 MFA NO.9216/2015
8. Section-2 (16) and (21) of the M. V. Act., defines what is Heavy Goods Vehicle and Light Motor Vehicle respectively. Admittedly, in the present case the Driver was driving truck which is heavy goods vehicle but to drive such truck, the driver was not holding driving license to drive the truck. Therefore, the insurance company has rightly taken the defense under sub-section-(2) of Section-149 of the M.V. Act and has successfully established the said defence. Therefore, under these circumstances there is violation of condition of insurance policy and hence the insurance company is not liable to pay the compensation. But where the insurance company takes a defense and establishes the same successfully, as per Section-(2) of Section-149 of M.V. Act, then in case of third party claim, the insurance company shall satisfy the claim as per sub-section-(1) (4) and (7) and then recover from the owner of offending truck No.KA-51-A-7879 . This position of law 8 MFA NO.9216/2015 is upheld by the Hon'ble Supreme Court in the case of PAPPU AND OTHERS vs VINOD KUMAR LAMBA AND ANOTHER, reported in (2018) 3 SCC 208. and full bench of this court in NEW INDIA ASSURANCE COMPANY LTD. Vs YELLAVVA AND ANOTHER reported in ILR 2020 ACJ 2560. Therefore, in the present case the claimant is the third party and hence it is directed that the second respondent - insurance company shall satisfy the claim at first instance and then recover it from the owner of the offending vehicle truck no.KA-51-A- 7879, as per law.
Regarding Quantum of Compensation :
9. In the present case, the Tribunal awarded compensation under various heads as follows:
1. Pain And Sufferings : Rs. 50,000/-
2. Medical Expenses : Rs. 1,86,000/-
3. Nourishment Conveyance : Rs. 20,000/-
and Attendant Charges
4. Loss of Income during the : Rs. 28,000/-
period of treatment and bed rest (7000 x 4)
5. Disability : Rs. 1,30,000/-
9 MFA NO.9216/2015
6. Loss of amenities : Rs. 25,000/-
TOTAL : Rs. 4,39,000/-
10. Exhibit-P6 is the wound certificate,
Exhibit-P7 is the discharge summary and medical documentary evidence reveal that the claimant had suffered crush injury of right leg. It is revealed that there is open fracture of 3rd, 4th and 5th metatarsal with tars metatarsal subluxation with dorsal defector of right foot with head injury. The Tribunal awarded compensation of Rs.50,000/- towards 'Pain And Suffering', which is found to be correct according to the injury sustained by the claimant.
11. The compensation awarded at Rs.1,86,000/- towards 'Medical Expenses' is correct as has been awarded as per actual medical bills produced. Therefore, it is kept in tact.
12. The amount of compensation of Rs.20,000/- awarded towards 'Nourishment 10 MFA NO.9216/2015 Conveyance And Attendant Charges' is also correct considering the as in patient.
13. The Tribunal has taken the notional income of Rs.7,000/- per month. It is stated that the claimant was a Driver and was earning salary of Rs.18,000/- per month, but there is no evidence to the effect of proving the income of the claimant. Therefore, under these circumstances, a notional income of Rs.8,000/- is to be taken into consideration, since the accident has occurred in the year 2013, as recognized by the Karnataka State Legal Services Authority. Therefore, for 'Loss Of Income During Laid-Up Period And Treatment Period' for four months of compensation of Rs.32,000/- (Rs.8,000 x 4) is awarded under this head.
14. The Doctor PW-2 had stated that the claimant had suffered permanent physical disability and 43% to right lower limb. The Tribunal had 11 MFA NO.9216/2015 considered the whole-body disability at 13%. Considering the nature of injuries sustained as above discussed and disability occurred and profession of the claimant the disability assessed by the Tribunal at 13% to the whole-body is found to be correct. The claimant was aged 30 years as on the date of the accident. Therefore, the appropriate multiplier is '17'. Therefore, 'Loss Of Future Earning Capacity Due To Disability' is recalculated as follows:
Rs.8000 x 13/100 x 17 x 12 = Rs.2,12,160/-
15. The claimant had suffered fracture of right leg metatarsal bone as above stated due to the said injury the claimant is having difficulty in walking alone squatting climbing up stairs. Thus, suffering loss of enjoyment of life and having difficulty in doing day to day normal activity to some extent. Therefore, an amount award towards 'Loss Of Amenities' at Rs.25,000/- at and the same is enhanced to 12 MFA NO.9216/2015 Rs.35,000/-. Thus, in all the claimant is entitled for an enhanced compensation as follows:
1. Pain And Sufferings : Rs. 50,000/-
2. Medical Expenses : Rs. 1,86,000/-
3. Nourishment Conveyance and : Rs. 20,000/- Attendant Charges
4. Loss of Income during the period of : Rs. 32,000/- treatment and bed rest (8,000 x 4 )
5. Loss Of Future Earning Capacity Due To : Rs. 2,12,160/- Disability (8,000 x 13/100 x 17 x 12)
6. Loss of amenities : Rs. 35,000/-
TOTAL : Rs. 5,35,160/-
16. Therefore, the appellant is awarded a total compensation of Rs.5,35,160/- as against the compensation awarded by the Tribunal at Rs.4,39,000/-.
Hence, the appellant is entitled for an additional compensation of Rs.96,160/- (Rs.5,35,160 - 4,39,000), along with interest at 6% per annum from the date of filing of the petition till deposit.
17. Accordingly, I pass the following:
ORDER i. The filed by the appellant- claimant is allowed in part.13 MFA NO.9216/2015
ii. The impugned judgment and award dated 04.09.2015, passed in M.V.C. No.3612/2014, on the file of the Motor Accident Claims Tribunal at Bengaluru is modified.
iii. The appellant is entitled for an additional compensation of Rs.96,160/- (Rs.5,35,160 - 4,39,000), along with interest at 6% per annum from the date of filing of the petition till deposit.
iv. Registry is directed to return the Trial Court Records to the Tribunal, along with certified copy of the order passed by this Court forthwith without any delay.
v. Draw award accordingly.
vi. No order as to costs.
Sd/-
JUDGE
JJ