Karnataka High Court
Ambaresh S/O Hanumanth, vs Kutubuddin S/O Khadarsab Balutagi, on 31 May, 2013
Bench: N.K.Patil, B.Manohar
:1:
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 31ST DAY OF MAY, 2013
PRESENT
THE HON'BLE MR.JUSTICE N.K.PATIL
AND
THE HON'BLE MR.JUSTICE B.MANOHAR
M.F.A. NO.20972/2011 (MV)
C/W M.F.A. NO.22775/2010 AND
M.F.A. NO.20973/2011 (MV)
IN M.F.A. NO.20972/2011:
BETWEEN:
Ambaresh S/o. Hanumanth,
Age: 30 years, Occ.: Agril & Mil Vending,
(Now nil) R/o. Kukanapalli Village,
Tq. & Dist. Koppal. ...Appellant
(By Shri Laxman T. Mantagani, Adv.)
AND:
1. Kutubuddin S/o. Khadarsab Balutagi,
Age: 30 years, Occ. Driver,
R/o. Kumbar Oni, Hanumasagar,
Tq. Kushtagi, Dist. Koppal.
2. Khadarsab S/o. Rajasab Balutagi,
Age: Major, Occ. Business,
R/o. Hanumasagar, Tq. Kushtagi,
Dist. Koppal.
3. Manager, IFFCO-TOKIO General
Insurance Co., Ltd.,
Customer Service Center,
:2:
KSCMF Building, III Floor,
3rd Block Cunningham Road,
Bangalore - 560 052. ...Respondents
(By Shri Ravindra R. Mane, Adv. for R-3 &
R-1 and R-2 served)
This MFA is filed under Section 173(1) of MV Act,
against the judgment and award dated 31.05.2010, passed
in MVC No.430/2008, on the file of the Presiding Officer,
Fast Track Court II at Koppal, partly allowing the claim
petition for compensation and seeking enhancement of
compensation.
IN M.F.A. NO.22775/2010:
BETWEEN:
Manager, Iffco Tokio General
Insurance Co., Ltd.,
Customer Service Center,
KSCMF Building, III Floor,
III Block, #8, Cunningham Road,
Bangalore, Represented by its
Authorized Signatory. ...Appellant
(By Shri Ravindra R. Mane, Adv.)
AND:
1. Ambaresh S/o. Hanumanth,
Age: about 33 years, Occ.: Agril,
R/o. Kukanapalli Village,
Tq. & Dist. Koppal.
2. Kutubuddin S/o. Khadarsab Balutagi,
Age: 32 years, Occ. Driver,
R/o. Kumbar Oni, Hanumasagar,
Tq. Kushtagi, Dist. Koppal.
3. Khadarsab S/o. Rajasab Balutagi,
Age: Major, Occ. Business,
R/o. Hanumasagar, Tq. Kushtagi,
:3:
Dist. Koppal.
(Owner of vehicle No.KA-37/6028) ...Respondents
(By Shri Laxman T. Mantagani, Adv. for R-1 &
R-2 and R-3 served)
This MFA is filed under Section 173(1) of MV Act,
1988, against the judgment and award dated 31.05.2010,
passed in MVC No.430/2008, on the file of the Presiding
Officer, Fast Track Court II, Koppal, awarding compensation
of Rs.1,15,000/- with interest at the rate of 6% p.a. from the
date of petition till depositing.
IN M.F.A. NO.20973/2011:
BETWEEN:
Mallappa S/o. Mallikarjun,
Age: 31 years, Occ.: Agril & Mil Vending,
(Now nil) R/o. Kukanapalli,
Tq. & Dist. Koppal. ...Appellant
(By Shri Laxman T. Mantagani, Adv.)
AND:
1. Kutubuddin S/o. Khadarsab Balutagi,
Age: 30 years, Occ. Driver,
R/o. Kumbar Oni, Hanumasagar,
Tq. Kushtagi, Dist. Koppal.
2. Khadarsab S/o. Rajasab Balutagi,
Age: Major, Occ. Business,
R/o. Hanumasagar, Tq. Kushtagi,
Dist. Koppal.
3. Manager, IFFCO-TOKIO General
Insurance Co., Ltd.,
Customer Service Center,
K Cunningham Road,
Bangalore - 560 052. ...Respondents
(By Shri Ravindra R. Mane, Adv. for R-3 &
:4:
R-1 and R-2 served)
This MFA is filed under Section 173(1) of MV Act,
against the judgment and award dated 31.05.2010, passed
in MVC No.431/2008, on the file of the Presiding Officer,
Fast Track Court II at Koppal, partly allowing the claim
petition for compensation and seeking enhancement of
compensation.
These miscellaneous first appeals coming on for
Admission, this day, N.K.Patil J., delivered the following:
JUDGMENT
These three appeals arise out of the common judgment and award dated 31.05.2010 passed in M.V.C. Nos.430/2008 and 431/2008, on the file of the Fast Track Court - II at Koppal. The Tribunal by its common judgment and award, awarded a sum of Rs.1,55,200/- (but, wrongly shown as Rs.1,15,000/-) and in the second case Rs.8,000/- with interest at 6%, on account of the injuries sustained by both the claimants in the road traffic accident.
2. It is the case of the appellant - Insurer that the Insurer is not liable to indemnify the award amount, on the ground that the driver did not possess an effective driving licence or any endorsement from jurisdictional :5: R.T.O. to drive the vehicle involved in the question. Therefore, the direction to indemnify the award is liable to be set aside.
3. Whereas, it is the case of the claimants that quantum of compensation awarded in both the cases is inadequate and it requires to be enhanced. Therefore, the appellants have presented these appeals, seeking appropriate reliefs as stated supra.
4. The brief facts of the case in hand are that, on account of the road traffic accident that occurred on 03.09.2007 at about 03:00 p.m. due to the rash and negligent driving of the offending vehicle by its rider, the claimants in MFA No.20972/2011 and MFA No.20973/2011 sustained grievous injuries. Due to the impact, they fell down, sustained injury to the right leg and other parts of the body. Immediately, they were taken to Government Hospital, Munirabad by one Shri Gudneppa. First aid had been given and thereafter, they were taken to K.I.M.S. Hospital, Hubli. It is the :6: case of the appellant in M.F.A. No.20972/2011, he undergone treatment for a period of 6 months in the K.I.M.S. Hospital, Hubli. Further he contended that he was aged about 30 years and by profession he was an agriculturist and milk vendor. He was hale and healthy prior to the accident. He further contended that he had spent reasonable amount for conveyance, nourishing food and attendant charges and examined Doctor P.W.2. He assessed the disability at 70% to the limb out of which if 1/3rd is taken, the whole body disability would be 23.33% and they have suffered injury, pain and suffering during the treatment period and he had spent reasonable amount for medical expenses, on account of the injuries sustained. The Doctor advised to take bed rest and discomfort and unhappiness persists throughout his life. He is not in a position to do his work and also he requires some reasonable amount towards future medical expenses. Taking all these factors into consideration, they have filed a claim petition under Section 166 of the M.V. Act against the :7: Insurer, owner and driver of the offending vehicle. The matter had come up for consideration before the Tribunal. The Tribunal in turn considering the oral and documentary evidence of P.Ws.1 and 2 and R.Ws.1 and 2 and documentary evidence Exs.P-1 to P-96 and Exs.R-1 to R-3 allowed the claim petition awarding a sum of Rs.1,55,200/- and Rs.8,000/- in both the cases with interest at 6% p.a. from the date of petition till the date of realisation. Being dissatisfied with the quantum of compensation awarded by the Tribunal, the appellants have presented these two appeals seeking enhancement of compensation.
5. The submission of the learned counsel appearing for the claimants, Shri Laxman T. Mantagani, at the outset is that the Tribunal has erred in not assessing the income of the claimants reasonably on account of the accident occurred on 03.09.2007. Both the claimants are aged about 30 years and by occupation they were agriculturists and also doing milk vending business. Further, he pointed out and submitted that :8: on account of injuries sustained, the Doctor has assessed functional disability to the limb at 70% out of which it comes to 23 % to the whole body and he has suffered pain and suffering during the treatment period and it is reasonable to award some amount towards loss of income during the laid up period. Therefore, he submitted that the judgment and award passed by the Tribunal is to be modified and awarded reasonable compensation in both the cases.
6. As against this, the learned counsel appearing for the Insurance Company, Shri Ravindra R. Mane, at the outset submitted that the Tribunal has committed error in awarding compensation and in issuing a direction to indemnify the award amount. To substantiate his submission, he is quick to point out and submit that the driver of the Tam-Tam goods vehicle did not possess a valid driving licence, but he had got a L.M.V. licence, as per Ex.R-2 - the registration letter and Ex.R-3 - Insurance Cover Note. He cannot drive the vehicle involved in the accident and further he vehemently :9: submitted that duration of the licence issued for L.M.V. is 20 years, whereas in respect of the transport vehicle, it is only for 3 years. These aspects of the matter have not been considered nor appreciated. Further he placed reliance on the judgment of the Hon'ble Apex Court in the case of National Insurance Co. Ltd., vs. Annappa Irappa Nesaria and Others reported in 2008 ACJ 721 and also another judgment in the case of New India Assurance Co. Ltd., vs. Roshanben Rahemansha Fakir and Another reported in 2008 ACJ 2161 and submitted that it is not in dispute that the rider of the Tam-Tam good vehicle did not possess a valid driving licence and therefore the Tribunal is not justified in directing to indemnify the award amount holding that the driver has got the valid licence as on the date of the accident and the same cannot be sustained and it is liable to be set aside. Further, he submitted that, regarding award of the compensation, the Tribunal has not appreciated the oral and documentary evidence and therefore the same may be considered in accordance with law. Further he : 10 : submitted that the Insurance Company has not assailed the correctness of the judgment and award passed in M.V.C. No.431/2008, wherein the Tribunal has awarded only Rs.8,000/.and the Insurer has already satisfied the award amount. Therefore, they have not questioned the correctness of the judgment and award passed in M.V.C. No.431/2008.
7. After careful consideration and submission of the learned counsel appearing for the appellant and Insurer and after perusal of the impugned judgement and award passed by the Tribunal, the points that arise for consideration are: -
"1. Whether the quantum of compensation awarded by the Tribunal is just and reasonable?"
2. Whether the Tribunal is justified in holding that the driver of the Tam-Tam vehicle was holding valid licence to drive the vehicle involved in accident? Re: Point No.1: -
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8. The undisputed facts of the case on hand are that, the occurrence of the accident and the resultant injuries to the claimants in the road traffic accident are not in dispute. Further it is the case of the appellant that in M.F.A. Nos.20972/2011 contended that, the appellant -
Ambaresh was aged about 30 years, by occupation agriculturist and also doing milk vending. The accident occurred on 03.09.2007 and having regard to the age, avocation and year of the accident, we can safely re- assess the income of the deceased at the rate of Rs.4,500/- per month. After verifying the oral and documentary evidence, he has undergone treatment for a period of six months and undergone one surgery and as per the evidence of the Doctor - P.W.3 Suresh Korlhalli, after medical examination, he assessed the functional disability at 70% to the particular limb, out of this, if 1/3rd is taken, it comes to 23% to the whole body. Accordingly, we assess permanent disability at 23% to the whole body as against 20% assessed by the Tribunal. The Tribunal ought to have taken into : 12 : consideration duration of the treatment undergone and the pain and suffering, suffered during the treatment period. He must have spent some reasonable amount and we presume that the appellant might have taken bed rest at least for a period of six months, because he has suffered grievous injury to the right leg and he may not be in a position to do his work. Having regard to the age, avocation, we can safely re-assess the income at the rate of Rs.4,500/- per month to meet the ends of justice. Taking into consideration the facts as referred above, we deem fit to award a sum of Rs.30,000/- towards injury, pain and suffering as against Rs.5,000/-, Rs.10,000/- towards conveyance, nourishing food, attendant charges as against Rs.3,000/-, a sum of Rs.27,000/- towards loss of income during laid up period at the rate of Rs.4,500/- per month for a period of six months and loss of future income at Rs.2,11,140/- (Rs.4,500/-X12X17x23/100) as against Rs.1,15,200/-. Further Tribunal is justified in awarding Rs.17,000/- towards medical expenses as : 13 : per the medical bills and Rs.10,000/- towards future medical expenses. Therefore, interference by this Court is not called for. The appellant - Shri Ambaresh in M.F.A. No.20972/2011 is entitled to compensation under different heads as follows: -
Injury, pain and suffering Rs.30,000=00 Medical expenses Rs.17,000=00 Conveyance, attendant charges Rs.10,000=00 Loss of income during laid up period Rs.27,000=00 Loss of amenity Rs.20,000=00 Loss of future income Rs.2,11,140=00 Future medical expenses Rs.10,000=00 Total Rs.3,25,140=00
9. There will be enhancement of Rs.1,69,940/- with interest at 6% p.a. from the date of petition till the date of realisation.
10. So far as the compensation awarded in M.F.A. No.20973/2011 arising out of M.V.C. No.431/2008 is concerned, the Tribunal after due consideration of the oral and documentary evidence and the materials available on file, is justified in awarding reasonable compensation. Therefore, interference by this Court is not called for.: 14 :
Re. Point No.2: -
11. It is the specific case of the appellant - Insurer that, the Tribunal has erred in holding that the rider of the Tam-Tam goods vehicle possessed the L.M.V. driving licence, as per Ex.R-2 in the registration letter and he is entitled to drive the transport vehicle. Further, he submitted that neither the claimant nor the owner of the offending vehicle has produced the certificate issued by the jurisdictional R.T.O. authorizing to drive the goods vehicle. Further the learned counsel appearing for the Insurer placed reliance on the judgment of the Hon'ble Apex Court in the case of National Insurance Co. Ltd., vs. Annappa Irappa Nesaria and Others reported in 2008 ACJ 721 and also another judgment in the case of New India Assurance Co. Ltd., vs. Roshanben Rahemansha Fakir and Another reported in 2008 ACJ 2161, wherein it is held that when the driver had licence to drive the motor vehicle, but was driving the van which had the goods carriage permit, the Insurance Company seeks to avoid liability on the ground that the : 15 : driver did not possess the effective driving licence for the vehicle. Further he pointed out and vehemently submitted that as per Section 14(2), the person is entitled to drive the transport vehicle only for a period of three years, whereas in the instant case, the rider of the vehicle has got L.M.V. licence for a period of 20 years nor produced any authorisation from the R.T.O. Office.
This aspect of the matter has not been looked into by the Tribunal. Therefore, the liability has to be fastened on the Insurance Company to indemnify the award amount cannot be sustained and liable to be set aside and the licence which was held by the driver of the Tam-Tam goods vehicle was issued on 16.08.2007 i.e. after 28.03.2001. When this aspect is taken, there is no liability on the part of the Insurer to indemnify the award amount.
12. As against this, the learned counsel appearing for the claimants, Shri Laxman T. Mantangani, substantiated the reasoning given by the Tribunal regarding fastening liability, stating that, after due : 16 : appreciation of the oral and documentary evidence available on file and following the judgment of this Court and Hon'ble Apex Court, the Tribunal has fastened the liability. Therefore, interference by this Court is not called for. To substantiate his submission, he has taken us through the reasoning given in paragraph No.13, wherein reliance is placed on the judgment of the Hon'ble Apex Court, wherein it is held that the licence obtained by the driver of the vehicle is valid. Further it is observed that person having licence to drive L.M.V. would be deemed to have authority to drive transport vehicle and not exceeding 7,500 kg. laden weight, weight of the vehicle and in the instant case, the vehicle involved is weighing about 975 kg., and he deemed to have the effective driving licence to drive the vehicle involved in the instant case and the reliance placed by the learned counsel appearing for the appellant - Insurer cannot be made applicable to the facts and circumstances of the case on hand and they have not produced any documents to show that the : 17 : vehicle involved is weighing more than 7,500 kg. Having regard to the nature of the injuries sustained and also Ex.R-2 - registration letter issued and since the driver of the vehicle has got valid licence as on the date of the accident, not having authorization to drive the transport vehicle may not invalidate. Nor it is the case of the appellant - Insurer that they have initiated any separate proceedings against the owner and driver regarding not having valid licence. The claimants being a third party, sustained injury and are seeking redressal of their grievance for compensation on account of injuries sustained in the road traffic accident. Taking such stand in the instant case is not justifiable. Taking into consideration, the submission of the learned counsel appearing for both the parties and after perusal of the reasoning given by the Tribunal in paragraph Nos.12, 13 and 14 of the judgment, wherein the Tribunal has placed reliance on the judgment of the Hon'ble Apex Court 2009 (1) TAC page 826 (Patna) wherein their lordships have observed that any person : 18 : having licence to drive L.M.V. would be deemed to have authority to drive transport vehicle not exceeding laden weight of 7,500 kgs., and the licence held by the driver of the offending vehicle is valid because the weight of the vehicle is only 975 kgs., and further as held by the Apex Court in the case of National Insurance Co. Ltd., vs. Annappa Irappa Nesaria and Others reported in 2008 ACJ 721, the driver in the instant case was driving a van which had a goods carriage permit and Insurance Company seeks to avoid its liability on the ground that driver did not possess an effective driving licence to drive a transport vehicle. The Tribunal held that driver was authorised to drive the vehicle as the unladen weight of the vehicle is less than 7,500 kg., and the High Court did not accept the contention of the Insurance Company that it has no liability on the ground that there is violation of terms and conditions of the policy. The transport vehicle has now been substituted for medium goods vehicle and heavy goods vehicle in Form No.4 but L.M.V. continued to cover : 19 : both, light passenger carriage vehicle and light goods carriage vehicle. Whether a driver who had valid licence to drive a L.M.V. was authorized to drive a light goods vehicle as well and upheld that he has got valid licence. This aspect of the matter has been rightly considered and appreciated and recorded the concurrent finding of fact against the appellant - Insurer, and the same is strictly in consonance with the material on file. Taking into consideration, the law laid down by the Hon'ble Apex Court interference by this Court is not called for. However, so far as the judgment relied upon by the learned counsel appearing for the insurer is concerned, there is no dispute or quarrel with regard to the ratio of law laid down in the said judgment but te same cannot be made applicable to the facts and circumstances of the case on hand for the reason that in the case on hand the driver was holding driving licence to drive the L.M.V. and the vehicle was weighing around 975 kgs. This aspect has been considered by the Hon'ble Apex Court and held that, under such circumstances, there : 20 : is no need to obtain authorisation from the jurisdictional R.T.O. Hence, we answer Point No.2 against the appellant - Insurer, upholding the reasoning given by the Tribunal.
13. The common impugned judgment and award dated 31.05.2010 passed in M.V.C. No.430/2008 filed by the claimant is allowed in part and the appeal filed by the Insurer M.F.A. No.22775/2010 is dismissed as devoid of merits.
M.F.A. No.20973/2011 arising out of M.V.C. No.431/2008 is dismissed as devoid of merits.
The claimant in M.F.A. No.20972/2011 is entitled to the enhanced compensation of Rs.1,69,940/- with interest at 6% p.a. from the date of petition till the date of realisation.
Out of the enhanced compensation amount Rs.1,69,940/-, Rs.1,00,000/- with proportionate interest shall be deposited in the name of the claimant - : 21 : Ambaresh in any nationalized bank for a period of 10 years and renewable for another 10 years and he is permitted to withdraw the interest periodically.
Remaining Rs.69,940/- with proportionate interest shall be released in favour of claimant immediately on deposit by the Insurance Company.
The amount in deposit made by the appellant- Insurer in M.F.A. No.22775/2010 shall be transmitted to the jurisdictional Tribunal forthwith.
Office to draw the award accordingly.
Sd/-
JUDGE Sd/-
JUDGE Rsh