Karnataka High Court
Thimmashetti vs H S Shobha on 28 June, 2024
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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NC: 2024:KHC:24180
MFA No. 3030 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO.3030 OF 2015
(MV-I)
BETWEEN:
THIMMASHETTI,
S/O. VENKATASHETTI,
AGED ABOUT 50 YEARS,
RESIDENT OF KOMMANAHALLI VILLAGE,
HASSAN TALUK,
HASSAN DISTRICT - 573 201.
...APPELLANT
(BY SMT. P. V. KALPANA., ADVOCATE)
AND:
1. H. S. SHOBHA,
D/O. SIDDALAINGAIAH,
Digitally signed by
RAMYA D
MAJOR,
Location: HIGH
COURT OF
RAILWAY STATION ROAD,
KARNATAKA BEHIND GANAPTHI TEMPLE,
AMMASANDRA,
TUMKUR DISTRICT - 572 101.
2. THE MANAGER,
SRIRAM GENERAL INSURANCE CO. LTD.,
10003, E-8, EPIP RIICO,
SITAPUR, JAIPUR,
RAJASTAN STATE.
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NC: 2024:KHC:24180
MFA No. 3030 of 2015
REPRESENTED BY
THE MANAGER,
SRIRAM GENERAL INSURANCE CO. LTD.,
2ND FLOOR, MONARCH CHAMBERS,
INFANTRY ROAD,
SHIVAJINAGARA,
BANGALORE - 560 001.
3. SYED YUNAS,
S/O SYED BUDEN SAB,
MAJOR,
NO. 276, FARIDA MOHALLA,
HULIYARU,
C. N. HALLI TALUK,
TUMKUR DISTRICT - 572 101.
4. THE MANAGER,
SRIRAM GENERAL INSURANCE CO. LTD.
2ND FLOOR, MONARCH CHAMBERS,
INFANTRY ROAD,
SHIVAJINAGARA,
BANGALORE - 560 001.
...RESPONDENTS
(BY SRI. ANUP SEETHARAMA RAO., ADVOCATE FOR R2
AND R4
SRI. FAYAZ SAB B. G., ADVOCATE FOR R3
R1 SERVED AND UNREPRESENTED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD DATED 11.2.2015
PASSED IN MVC NO.306/2013 ON THE FILE OF THE II ADDITIONAL
DISTRICT & SESSIONS JUDGE, ADDITIONAL MACT, HASSAN, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION AND ETC.,
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NC: 2024:KHC:24180
MFA No. 3030 of 2015
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The appeal is filed by the claimant seeking enhancement of compensation as well as modification of liability fastened as against the owner of the lorry in the accident.
2. Parties are referred to as per their ranking before the tribunal.
3. It is the case of the claimant that on 05.05.2011, the claimant and one Eregowda were appointed as Loaders in a Lorry bearing registration No.KA-44-1586 and after loading mines for the purpose of carrying the same to Hariyana Steel Industries, at about 6:00 p.m., when they were reached Attavara Gate, the driver of the said Lorry drove the same in a rash and negligent manner and dashed against another Lorry bearing registration No.KA-44-9230 from backside, which was parked on the left side of the road. Due to the said -4- NC: 2024:KHC:24180 MFA No. 3030 of 2015 accident, the claimant sustained injuries. Therefore, the claimant has filed a claim petition. The Tribunal has awarded compensation by holding that the owner of the Lorry is liable to pay compensation on the reason that there is violation of condition of the policy that the claimant has travelled in the Lorry as a passenger. Accordingly, exonerated the Insurance Company- respondent No.2 from paying the compensation.
4. Learned counsel for appellant - claimant submitted that the claimant has suffered amputation of right leg below the knee and suffered permanent physical disability. However, the tribunal has considered the disability of only 23%, which is not correct. Since the claimant being a Loader in the Lorry had suffered 100% functional disability. Therefore, he prays to enhance compensation amount. It is further submitted that the claimant was a Loader in the Lorry and not travelled as a passenger, but the tribunal has wrongly appreciated the evidence on record. Therefore, he submitted that the -5- NC: 2024:KHC:24180 MFA No. 3030 of 2015 finding given by the Tribunal is perverse and illegal. Hence, he prays to allow the appeal by enhancing compensation as well as fastening the liability on respondent No.2 - Insurance Company.
5. On the other hand, learned counsel for respondent No.2 - Insurance Company submitted that the tribunal has awarded just and reasonable compensation, which does not call for any interference. It is further submitted that the claimant has travelled as a passenger in the Lorry. Hence, the tribunal has exonerated respondent No.2 - Insurance Company from paying the compensation and fastened the liability on the owner of the Lorry, which is justifiable and does not need any interference. Accordingly, he prays to dismiss the appeal. REGARDING QUANTUM OF COMPENSATION:
6. In the present case, the tribunal has awarded compensation as under:
Sl. Particulars Amount No. 1. Pain and Suffering Rs.20,000/- 2. Medical expenses Rs.4,000/- -6- NC: 2024:KHC:24180 MFA No. 3030 of 2015 3. Loss of earning during Rs.3,500/- treatment 4. Loss of future earning capacity Rs.1,51,800/- 5. Conveyance, food and Rs.6,000/- nourishment Total Rs.1,85,300/-
7. From the medical evidence on record, it is seen that the claimant has suffered the following injuries:
i. Crush injury seen over right leg
5cms., X 2cm.,/2cms.,
ii. Lacerated wound over left foot.
8. The medical evidence on record and the
evidence of the Doctor/PW-2, who has given treatment to the claimant proved the fact that the claimant - appellant has suffered amputation of right leg below knee. It is stated that the claimant is a Cleaner-cum-Loader in the Lorry. For this, the documentary evidence cannot be expected to prove the avocation. Therefore, the avocation of the claimant is considered as Cleaner-cum-Loader.
9. The Cleaner-cum-Loader requires physical strength to work. The claimant had suffered amputation of right leg below the knee. However, the claimant with one -7- NC: 2024:KHC:24180 MFA No. 3030 of 2015 leg cannot discharge his duty as a Cleaner effectively. Therefore, the claimant has suffered permanent physical disability at 100%, but the Tribunal has committed an error in considering the functional disability only at 23% in the present case and the same is to be considered at 100%. In this regard, I place reliance on the judgment of the Hon'ble Apex Court in the case of RAJ KUMAR VS. AJAY KUMAR AND ANOTHER reported in (2011) 1 SCC
343. Wherein at Paragraph Nos.12, 13 and 19, it is held as follows:
12. The Tribunal should also act with caution, if it proposed to accept the expert evidence of doctors who did not treat the injured but who give `ready to use' disability certificates, without proper medical assessment. There are several instances of unscrupulous doctors who without treating the injured, readily giving liberal disability certificates to help the claimants. But where the disability certificates are given by duly constituted Medical Boards, they may be accepted subject to evidence regarding the genuineness of such certificates. The Tribunal may invariably make it a point to require the evidence of the Doctor who treated the injured or who assessed the permanent disability. Mere production of a disability certificate or Discharge Certificate will not be proof of the extent of disability stated therein unless the Doctor who treated the claimant or who medically examined and assessed the extent of disability of claimant, is tendered for cross-examination with reference to the certificate. If the Tribunal is not satisfied with the medical evidence -8- NC: 2024:KHC:24180 MFA No. 3030 of 2015 produced by the claimant, it can constitute a Medical Board (from a panel maintained by it in consultation with reputed local Hospitals/Medical Colleges) and refer the claimant to such Medical Board for assessment of the disability.
13. We may now summarize the principles discussed above :
(i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity.
(ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that percentage of loss of earning capacity is the same as percentage of permanent disability).
(iii) The doctor who treated an injured-claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety.
(iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors.
"19. The evidence showed that at the time of the accident, the appellant was aged around 25 years and was eking his livelihood as a cheese vendor. He claimed that he was earning a sum of Rs.3000/- per month. The Tribunal held that as there was no acceptable evidence of income of the appellant, it should be assessed at Rs.900/- per month as the minimum wage was Rs.891 per month. It would be very difficult to expect a roadside vendor to have accounts or other documents regarding income. As the accident occurred in the year 1991, the Tribunal ought to have assumed the income as at least Rs.1500/- per month (at the rate of Rs.50/--9-
NC: 2024:KHC:24180 MFA No. 3030 of 2015 per day) or Rs.18,000/- per annum, even in the absence of specific documentary evidence regarding income.
10. Further the Hon'ble Supreme Court in the case of REKHA JAIN VS., NATIONAL INSURANCE CO., LTD., AND OTHERS reported in (2013) 8 SCC 389 is pleased to consider that the injured has suffered 100% of functional disability as the injured was a woman working in a film and a TV actress and was aged about 24 years. The injured has suffered injury on the face and her face was disfigured. The injured is no longer to work in film or as a TV actress and had lost her entire earning capacity as a TV actress. Therefore, the Honble Supreme Court considered it as 100% of functional disability. The principle of law laid down therein is squarely applicable to the case on hand.
11. The Hon'ble Supreme Court in the case of JAKIR HUSSEIN VS. SABIR AND OTHERS reported in (2015) 1 SCC 252 is pleased to hold that the permanent disability and functional disability are two different aspects. Even though, there would not be 100% of
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NC: 2024:KHC:24180 MFA No. 3030 of 2015 permanent physical disability, but it affects the avocation of the injured to carry out the profession as he was doing before the accident. Then it would amount to 100% of functional disability. The injured being a driver met with an accident and as per the doctor's evidence, he suffered 55% of permanent physical disability and cannot drive any motor vehicle in future. Therefore, with such disability, when the driver is not able to carry on the profession as driver, then it is amounting to functional disability and accordingly, awarded compensation by holding functional disability at 100%. Further the Hon'ble Supreme Court in the case of MOHAN SONI VS. RAM AVTAR TOMAR AND OTHERS reported in (2012) 2 SCC 267 had held that the injured being a cart-puller met with an accident and left leg was amputated below the knee. Under these circumstances, the Hon'ble Supreme Court held the functional disability at 100%. Since, the injured is not able to work as a cart-puller and had suffered functional disability at 100% and accordingly, awarded compensation.
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NC: 2024:KHC:24180 MFA No. 3030 of 2015
12. Though the documentary evidence states that the claimant has suffered 70% of permanent functional disability, but considering the fact that the claimant being a Cleaner-cum-Loader, with such disabilities he cannot discharge his duty. Hence, it amounts to 100% functional disability.
13. The claimant was aged about 50 years and considering fact that the accident had occurred on 05.05.2011 and in the absence of proof of income, the Karnataka Legal Services Authority chart prescribes the notional income of the claimant at Rs.6,500/- per month for the year 2011. Since the claimant has suffered functional disability affecting his earning capacity, 25% of income is to be added towards loss of future prospects in life as per the Division Bench decision of this Court in the case of NEW INDIA ASSURANCE COMPANY VS. ABDUL S/O MEHABOOB TAHASILDAR in MFA No.103807/2016 C/W MFA.NOS.103835/2016 & 103807/2018 and as per the judgment of Hon'ble Supreme Court in the case of
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NC: 2024:KHC:24180 MFA No. 3030 of 2015 Sidram Vs. Divisional Manager, United India Insurance Company Limited and Another reported in (2023) 3 SCC 439. The proper multiplier applicable is '13'. Therefore, loss of earning capacity due to disability is hereby reassessed and quantified as under:
(Rs.6,500/- + 1,625/- = 8,125 X 13 X 12 = 12,67,500/-)
14. Further, the tribunal has committed an error in awarding lesser amount of compensation under various heads, which needs to be enhanced.
15. For "injuries, pain and sufferings" the compensation of Rs.75,000/- is awarded as against Rs.20,000/- awarded by the tribunal.
16. The tribunal awarded Rs.4,000/- towards "medical expenses" as per documentary evidence produced by the claimant. Therefore, the same is kept intact.
17. The tribunal awarded Rs.3,500/- towards "loss of earning during treatment". Due to injuries sustained in
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NC: 2024:KHC:24180 MFA No. 3030 of 2015 the accident, the claimant has suffered amputation of right leg. Therefore, he might not have attended his work at least for six months. Therefore, the compensation of Rs.39,000/- (Rs.6,500/- X 6) is awarded under this head.
18. The tribunal awarded Rs.6,000/- towards conveyance, nourishment and attendant charges, which is on the lower side. Therefore, this Court deems it appropriate to award Rs.30,000/- under this head.
19. The tribunal has not awarded any compensation towards loss of amenities in life. Therefore, this Court deems it appropriate to award Rs.50,000/- under this head.
20. Thus, in total, the claimant is entitled for compensation under the various heads as follows:
Sl. Particulars Awarded by the Awarded by No. Tribunal this Court
1. Pain and Suffering Rs.20,000/- Rs.75,000/-
2. Medical Expenses Rs.4,000/- Rs.4,000/-
3. Loss of earning during Rs.3,000/- Rs.39,000/-
laid up period
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NC: 2024:KHC:24180 MFA No. 3030 of 2015
4. Loss of earning capacity Rs.1,51,800/- Rs.12,67,500/-
due to disability
5. Initial expenses Rs.6,000/- Rs.30,000/-
(conveyance, food,
nourishment and
attendant charges)
6. Loss of amenities in life -- Rs.50,000/-
TOTAL Rs.1,85,300/- Rs.14,65,500/-
21. The tribunal has awarded compensation of Rs.1,85,300/-, but the claimant is entitled to the total compensation of Rs.14,65,500/-. Hence, the claimant is entitled to the enhanced compensation of Rs.12,80,200/- (Rs.14,65,500/- - Rs.1,85,300/-) along with interest at the rate of 6% per annum from the date of petition till the date of deposit in addition to what has been awarded by the Tribunal.
REGARDING THE LIABILITY:
22. The tribunal has held that the claimant has travelled in the Lorry as a passenger. Therefore, exonerated respondent No.2 - Insurance Company from paying the compensation and fastened the liability on the owner of lorry, who is respondent No.1 herein to pay compensation.
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NC: 2024:KHC:24180 MFA No. 3030 of 2015
23. The claimant in his complaint lodged before the Police has stated that he was working as a Cleaner in the Lorry. But in Ex.P-8, it is stated that while the claimant was travelling as a passenger, met with the accident and sustained injuries. PW.2-Doctor has stated that the information given to the Hospital is that the claimant was travelling in the Lorry as a passenger. Further, in Ex.P-7 - case sheet, occupation of the claimant is shown as Business. Therefore, while analyzing the evidence revealed in the complaint, FIR and charge sheet, it is stated that the claimant was working as a Cleaner in the Lorry but the documents at Exs.P-7 and 8 are the earliest documents i.e. soon after the accident the claimant had sustained injuries and admitted to the hospital. The profession of the claimant may be the Cleaner-cum- Loader, but, it is revealed from the evidence on record that the claimant has travelled in the Lorry as a passenger. Therefore, the tribunal has rightly come to the conclusion that the claimant has travelled in the Lorry as a passenger and exonerated respondent No.2 - Insurance
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NC: 2024:KHC:24180 MFA No. 3030 of 2015 Company from paying the compensation as there is breach of conditions of policy.
24. Learned counsel for claimant submitted that order of pay and recovery can be made by virtue of Sub- Section (1) and (2) of Section 149 of the Motor Vehicles Act.
25. Learned counsel for respondent No.2 - Insurance Company submitted that an order of pay and recovery cannot be made as it does not cover the conditions stipulated in Section (2) of 149 of the Motor Vehicle Act, in the facts and circumstances of the case.
26. It is further submitted that the risk of the claimant is not covered under Section 147 of the Motor Vehicle Act. Hence, an order of pay and recovery cannot be made as per Section 147 of the Motor Vehicle Act.
27. In the present case, it is proved that the offending vehicle is Lorry bearing registration No.KA-44- 1586 and the claimant has travelled in the Lorry as a
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NC: 2024:KHC:24180 MFA No. 3030 of 2015 passenger. Admittedly, the Lorry is a goods carriage vehicle and no passengers can be allowed to travel in the Lorry. On that basis, the permit was issued to the Lorry. On contrary to the permit, the owner of the Lorry has permitted the claimant to travel as a passenger in the said Lorry. Therefore, the offending Lorry has plied on hire by taking passenger. Therefore, as per Section 149 (2) (a)
(i) (a) of Motor Vehicles Act, it is proved that the Lorry being a transport vehicle, used for the purpose of carrying passengers, is not allowed by the permit. Therefore, an order of pay and recovery can be made.
28. In the present case, the Tribunal has observed that the claimant has travelled in the goods lorry as a gratuitous passenger; therefore, the Tribunal is correct in exonerating respondent No.2-Insurance Company from paying compensation to the claimant. Therefore, it is proved that the goods lorry was permitted to carry goods only, but not passengers hence, there is violation of permit and this violation resulting into non-payment of
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NC: 2024:KHC:24180 MFA No. 3030 of 2015 compensation by respondent No.2-Insurance Company under Section 149 (2) (a) (i) (a) of Motor Vehicles Act. When, respondent No.2-Insurnace Company establishes the fact that the claimant has travelled in the lorry as a gratuitous passenger, then as per Sub-sections (1), (4) and (7) of Section 149 of Motor Vehicles Act, the respondent No.2-Insurance Company shall satisfy the claim and then recover the same from respondent No.1- owner of lorry bearing registration No.KA-44-1586. Accordingly, the order of pay and recovery is made as per the principle of law laid down by the Hon'ble Supreme Court in the cases of PAPPU AND OTHERS Vs. VINOD KUMAR LAMBA AND ANOTHER reported in (2018) 3 SCC 208; NATIONAL INSURANCE COMPANY LIMITED VS. SWARAN SINGH AND OTHERS reported in (2004) 3 SCC 297 and also as per the full bench decision of this Court in the case of NEW INDIA ASSURANCE COMPANY LIMITED VS.
YELLAVVA AND ANOTHER reported in 2020 ACJ 2560. Accordingly, an order of pay and recovery is made. To
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NC: 2024:KHC:24180 MFA No. 3030 of 2015 this extent, the judgment and award passed by the Tribunal is modified.
29. Further, liberty is reserved to respondent No.2- Insurance Company to recover the amount from the respondent No.1 - owner of the lorry bearing registration No.KA-44-1586 as per law. Respondent No.2 - Insurance Company is given liberty to get an order of attachment of the vehicle in the process of recovery of the amount from the owner of lorry.
30. In view of the aforesaid reasons, the appeal filed by the claimant is liable to be allowed.
31. Hence, I proceed to pass the following:
ORDER i. The Miscellaneous First Appeal is allowed.
ii. The judgment and decree dated
11.02.2015 passed in MVC
No.306/2013 by the II Additional
District & Sessions Judge & Additional MACT at Hassan is hereby modified;
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NC: 2024:KHC:24180 MFA No. 3030 of 2015 iii. The claimant is entitled for the total compensation of Rs.14,65,500/- as against Rs.1,85,300/- along with interest @ 6% p.a. awarded by the tribunal;
iv. Respondent No.2 - Insurance Company shall pay the compensation at first instance to the appellant - claimant, then recover the same from respondent No.1 - owner of the lorry bearing registration No.KA-44-1586.
v. Draw award accordingly.
SD/-
JUDGE
SRA
List No.: 1 Sl No.: 23