Karnataka High Court
Sri Sattu @ Settu vs Sri A Ayub on 29 November, 2022
Author: H.P. Sandesh
Bench: H.P. Sandesh
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
M.F.A.NO.6413/2014 (MV)
BETWEEN:
SRI SATTU @ SETTU
S/O. LATE BASHA @ BASHU SAHEB
AGED ABOUT 43 YEARS
PERMANENTLY R/AT NO.611
KITTIYAPPAKUTTAI WARD
AVALAHALLI POST, HOSUR TALUK
KRISHNAGIRI DISTRICT
NOW R/AT BEHIND BBMP OFFICE
HOMMANAHALLI, BENGALURU. ... APPELLANT
(BY SRI A.K.BHAT, ADVOCATE)
AND:
1. SRI A. AYUB
S/O. ANWAR ALI
NO.101, PARVATHI NAGAR
ATTIBELE (V), ANEKAL TALUK
BENGALURU DISTRICT.
2. THE LEGAL MANAGER
M/S. SRIRAM GENERAL
INSURANCE CO. LTD.,
MONARCH CHAMBER
INFANTRY ROAD, BENGALURU. ... RESPONDENTS
(BY SRI H.N. KESHAVA PRASHANTH, ADVOCATE FOR R2;
VIDE ORDER DATED 15.12.2017,
NOTICE TO R1 IS HELD SUFFICIENT)
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THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 20.06.2014
PASSED IN MVC NO.6802/2011 ON THE FILE OF THE VIII
ADDITIONAL SCJ & XXXIII ACMM, MEMBER-MACT, BENGALURU,
PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS M.F.A. COMING ON FOR FINAL HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard the learned counsel for the appellant and learned counsel for the respondent No.2-Insurance Company.
This appeal is filed challenging the judgment and award dated 20.06.2014 passed in M.V.C.No.6802/2011 on the file of the VIII Additional Small Causes Judge and Motor Accident Claims Tribunal (SCCH-5) at Bengaluru ('the Tribunal' for short) questioning the liability and quantum of compensation.
2. The parties are referred to as per their original rankings before the Tribunal to avoid confusion and for the convenience of the Court.
3. The factual matrix of the case of the claimant before the Tribunal is that on 19.07.2011 at about 1.00 p.m., he was proceeding in the vehicle bearing registration No.KA-05-D-1133 3 as cleaner and after unloading firewood at Hosur Town, they were returning towards Attibele. Near Dasanapura Village on Attibele TVS Road, vehicle was driven in a rash and negligent manner and while overtaking, the driver lost control and dashed against road side tree. As a result, he had sustained injuries and immediately, he was shifted to Government Hospital, Attibele and from there to Sparsh Hospital, Bengaluru. He was inpatient from 19.07.2010 to 28.07.2011 and it is also his claim that, as a result of the accident, he had sustained permanent disability.
4. In support of his contention, he examined himself as P.W.1 and the Doctor as P.W.2 and got marked the documents as Exs.P1 to P14. On the other hand, the respondent No.2- Insurance Company examined a witness as R.W.1 and got marked the copy of the policy as Ex.R1.
5. The main contention of the learned counsel appearing for the respondent No.2-Insurance Company is that the claim of the claimant could be considered only under the Workmen Compensation Act/Employees Compensation Act and not under the Motor Vehicles Act. However, the Tribunal, while 4 allowing the claim petition in part granting compensation of Rs.4,10,000/-, directed the respondent No.1-insured to deposit the compensation amount with interest coming to the conclusion that not premium is paid covering the risk of cleaner. Hence, the present appeal is filed by the claimant.
6. The main contention of the learned counsel for the claimant is that the judgment and award of the Tribunal is against the material on record and the policy is a package policy and no special premium is paid covering the liability under the Workmen Compensation Act. As per Section 147, Clause-1(b), the liability under Workmen Compensation Act is covered even under the Act policy, the minimum liability of Insurance Company under the Workmen Compensation Act is covered. However, the Tribunal committed an error in exonerating the liability of the Insurance Company. The counsel also would vehemently contend that the claimant had suffered 50% of the physical disability and the Tribunal has taken only 15% of the disability and the very approach of the Tribunal is erroneous both in respect of quantum of compensation as well as taking 5 the disability at 15%. Hence, it requires interference of this Court.
7. The learned counsel for the claimant also brought to notice of this Court IMT-40 and would submit that, when no separate premium is paid, IMT-40 i.e., legal liability to paid driver and/or Conductor and/or cleaner employed in connection with the operation of motor vehicle. The counsel referring the same, also brought to notice of this Court that, in the policy itself it is mentioned as IMT-40. When such being the case, the contention of the Insurance Company that liability is only under Workmen Compensation Act cannot be accepted.
8. Per contra, learned counsel for the respondent No.2- Insurance Company would submit that in the ground No.2 of the appeal, it is stated that, it covers the liability under Workmen Compensation Act and the Insurance Company is also not disputing that it covers the liability under Workmen Compensation Act. It is the very contention of the counsel that, in terms of IMT-40, the cleaner employee is also entitled for compensation cannot be accepted. The counsel would further 6 submit that the liability could be fastened on the Insurance Company in respect of Employees Compensation Act and not under the Motor Vehicles Act. The counsel also would submit that, an amount of Rs.25/- is paid towards driver under IMT-40 and not in respect of a cleaner.
9. In reply to the arguments of the learned counsel for the respondent No.2-Insurance Company, the learned counsel for the claimant would submit that the compensation awarded by the Tribunal is very meager and quantum is also challenged before this Court. Hence, just and reasonable compensation has to be awarded in respect of the claim of the claimant is concerned.
10. Having heard the respective counsel and also on perusal of the material available on record, the points that would arise for consideration of this Court are:
(i) Whether the claimant is entitled for
compensation under the Workmen
Compensation Act or Employees
Compensation Act or Motor Vehicles Act as
contended in the appeal ?
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(ii) Whether the Tribunal committed an error in
exonerating the liability of the Insurance Company and committed an error in fastening the liability on the respondent No.1-insured ?
(iii) Whether the Tribunal committed an error in not awarding just and reasonable compensation ?
(iv) What order ? Point Nos.(i) and (ii)
11. Having heard the respective counsel and also the grounds urged in the appeal, no doubt, the appellant-injured in ground No.2 contended that the policy is a package policy under the Workmen Compensation Act, during the course of argument, the counsel brought to notice of this Court IMT-40, which is mentioned in the policy marked as Ex.R1. On perusal of the same, it is mentioned therein that, subject to IMT Endorsement Printed herein/attached to: IMT-40. Having considered IMT-40, the legal liability is to paid driver and/or Conductor and/or cleaner employed in connection with the operation of the motor vehicle. Having perused the Certificate cum Policy Schedule, it is 8 seen that, premium is collected in a sum of Rs.25/- in respect of LL to paid driver Count:1 and no premium is collected in respect of Conductor or Coolie or Cleaner and it is clearly mentioned that public carriers other than three wheelers package policy. On perusal of Ex.R1, it is clearly mentioned that the policy is subject to IMT Endorsement printed herein/attached to: IMT-40 and the same does not contain the IMT-40 Endorsement.
12. Now, the learned counsel appearing for the claimant has placed IMT-40 i.e., the legal liability is to paid driver and/or Conductor and/or cleaner employed in connection with the operation of the motor vehicle. On perusal of the policy, it is seen that only Rs.25/- is paid in respect of LL to paid Driver Count: 1 and no separate premium is paid in respect of the cleaner.
13. The premium is collected in respect of the driver and not in respect of the conductor or cleaner. However, the Tribunal committed an error in not granting compensation under the Workmen Compensation Act under IMT-40. Hence, the compensation can be awarded under Workmen Compensation 9 Act in terms of IMT-40 and the same is also not disputed by the learned counsel for the claimant and the ground No.2 is in respect of liability under the Workmen Compensation Act which is also not disputed by the learned counsel for respondent No.2- Insurance Company. Hence, the compensation can be awarded only under Workmen Compensation Act/Employees Compensation Act.
14. The very contention of the learned counsel appearing for the claimant is that IMT-40 Clause is not placed along with the policy and the same cannot be a ground to fasten the liability on the respondent No.2-Insurance Company to pay compensation under the Motor Vehicles Act.
Point No.(iii)
15. Now coming to the quantum of compensation is concerned, in terms of Ex.P5-wound certificate, the injured- claimant had sustained Type-III B-open fracture of both bones right leg and raw area over anteromedial aspect of right lower third and the injuries are grievous in nature injury and the injured was in Sparsh Hospital in terms of Ex.P9-discharge 10 summary, wherein he was diagnosed for Type-III B-open fracture of both bones right leg and raw area over anteromedial aspect of right lower third and he was subjected to surgery and wound debridement and interlocking nailing of right tibia with one proximal and two distal screws which was done on 19.07.2011 and free gracilis muscle flap to cover defect lower 3rd right leg was done on 20.07.2011 and he was inpatient from 19.07.2011 to 28.11.2011 for a period of 10 days and the Doctor, who has been examined as P.W.2 assessed the disability, wherein he also reiterated the nature of treatment given to him and assessed the disability of lower limb mobility as 10%, stability component as 90% and he has also considered stability component of 90% and total loss of stability component to the tune of 27% and Telescopic Formula for mobility as 40% and also added additional points and assessed the total physical disability of the right lower limb as 50% and the whole body disability at 15% and the same is considered by the Tribunal to the extent of 15%, while calculating the compensation towards disability and the claim is considered based on the Motor Vehicles Act.
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16. When the claimant has suffered fracture to both bones in terms of Ex.P5 and disability is also not assessed under Workmen Compensation Act and the injuries are also not scheduled injuries and here is a case of Type-III B-open fracture of both bones right leg, considering the evidence available on record, this Court has to assess the loss of earning capacity on account of accidental injuries. Having considered the fact that the claimant has suffered Type-III B-open fracture of both bones right leg, it is appropriate to consider the loss of earning capacity to the extent of 30% since, it is not an scheduled injury and the Court has to take note of the avocation of the injured i.e., Cleaner.
17. Having considered the income at Rs.8,000/- per month and the relevant factor of 184.17, since he is aged about 39 years, the loss of income comes to Rs.2,65,205/-.
18. The claimant has also produced the medical expenses covering for the period from 19.07.2011 to 16.10.2012 to the tune of Rs.2,19,792/- and on perusal of the inpatient bill, the same discloses that total bill is to the tune of Rs.1,40,787/- 12 and relief of Rs.10,000/- was given and net bill is for Rs.1,30,787/- and advance receipts are also produced for having made the payment. Apart from that, the claimant has also produced the medical bills. Hence, the claimant is entitled for medical expenses of Rs.2,19,792/-. Hence, in all, the claimant is entitled for compensation of Rs.4,84,997/-. Point No.(iv)
19. In view of the discussions made above, I pass the following:
ORDER
(i) The appeal is allowed in part.
(ii) The impugned judgment and award of the
Tribunal dated 20.06.2014 passed in
M.V.C.No.6802/2011, is modified granting compensation of Rs.4,84,997/- as against Rs.4,10,000/- with interest at the rate of 12% per annum after 30 days of the accident till its realization.
(iii) The liability fastened on the respondent No.1-insured is set aside, fastening the 13 liability on the respondent No.2-Insurance Company.
(iv) The Insurance Company is directed to deposit the compensation amount within six weeks from today.
(v) The Registry is directed to transmit the records to the concerned Tribunal, forthwith.
(vi) In all other respects, the order of the Tribunal remains unaltered.
Sd/-
JUDGE ST