Karnataka High Court
Sri Muralidhara P vs The United India Insurance Co Ltd on 17 December, 2018
Author: H.P.Sandesh
Bench: H.P. Sandesh
1 M.F.A. No. 8369/2010
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF DECEMBER, 2018
BEFORE
THE HON'BLE Mr. JUSTICE H.P. SANDESH
M.F.A. No. 8369/2010
BETWEEN :
Sri. Muralidhara R
S/o. Ramanaika
Aged about 31 yeas
R/o. D. No. 610/12
Srirama Badavane
Opp. Annaiah Industries
Nittuvalli
Davanagere. ... Appellant
(By Sri. V.B. Siddaramaiah, Adv.)
AND :
1. The United India
Insurance Co. Ltd.,
No. 273/13, I Floor
Mallikarjuna Complex
Pravasi Mandira Road
Davanagere
Rep. by its Branch Manager.
2. Sri. Vinayakumar Patil
S/o. Thimmanna
2 M.F.A. No. 8369/2010
Aged about 40 years
R/o. Bamboo Bazaar
Janatha Saw Mill Road
Davanagere. ... Respondents
(By Sri. B.C. Seetharama Rao, Adv., for R-1
Vide order dated 23.01.2015, Notice to R-2 held sufficient)
---
This MFA is filed under Section 173(1) of MV Act
against the judgment and award dated 05.05.2010 passed
in MVC No. 537/2008 on the file of the II Addl. Senior Civil
Judge and VI Addl. MACT, Davanagere, 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;
JUDGMENT
This Miscellaneous First Appeal is filed by the claimant challenging the judgment and award passed in MVC No. 537/2008 dated 05.05.2010 on the file of II Additional Senior Civil Judge and VI Additional MACT, Davanagere questioning the fastening of liability on the insured and also the quantum of compensation. 3 M.F.A. No. 8369/2010
2. The claimant is the insured who has filed the claim petition before the Tribunal under Section 166 of the Motor Vehicles Act claiming compensation of Rs.4,50,000/- contending that on 03.06.2008 when he was moving on his motor bike bearing Registration No. KA- 17/A-5139 on extreme left side of the road in front of Hanumanthappa Fertilizer Shop, the driver of Autorickshaw came in high speed, in rash and negligent manner and dashed against the motor cycle. As a result, he fell down and sustained injuries. Immediately the claimant was taken to C.G. Hospital, Davanagere where he took first aid treatment and thereafter he was shifted to Bapuji Hospital, Davanagere wherein he was inpatient from 03.06.2008 to 14.06.2008. It is his contention that due to accidental injuries he has suffered fractures and now he is unable to do the work which he was doing earlier.
4 M.F.A. No. 8369/2010
3. The respondent - Insurance Company, in pursuance of the notice issued by the Tribunal, appeared before the Tribunal and filed written statement contending that the Driver of the vehicle had no valid and effective driving licence to drive that particular class of vehicle and hence, the insurance company is not liable to pay the compensation amount.
4. In support of his claim the claimant got himself examined as P.W.1 and the Doctor was examined as P.W.2 and got marked Ex.P.1 to Ex.P.56. The respondent also got examined two witnesses as R.W.1 - the official of the insurance company and R.W.2 - the ARTO. The respondent got marked Ex.R.1 to Ex.R.3.
5. The Tribunal, by considering both the oral and documentary evidence available on record allowed the claim petition in part granting compensation of Rs.1,47,359/- with interest at the rate of 6% p.a. and 5 M.F.A. No. 8369/2010 fastened the liability on the insured and exonerated the insurance company.
6. Being aggrieved by the judgment and award of the Tribunal, the claimant has preferred this appeal contending that the compensation awarded by the Tribunal is very low and the Tribunal has taken the income of the claimant as Rs.3,000/- per month as against his monthly income of Rs.15,000/-. It is contended that the Tribunal has also committed an error in awarding less amount towards loss of income and the same is to be modified. The other contention of the claimant is that the Tribunal committed an error in holding that the insurance company is not liable to pay the compensation even though the driver of the vehicle was not having a valid and effective driving licence to drive that particular class of vehicle and therefore, the said finding of the Tribunal is not sustainable in the eye of law and the same has to be 6 M.F.A. No. 8369/2010 modified and the liability has to be fastened on the Insurance Company.
7. Learned counsel for the appellant in his arguments contends that the Driver was having driving licence, badge was allotted but as there was no stock, badge was not issued. The same is evident from the evidence of ARTO who was examined as R.W.2 and also from Ex.R.1 - the Driving Licence extract. The learned counsel also contends that the claimant has suffered fracture of right forearm also fibula but the Tribunal has awarded only a sum of Rs.20,000/- towards pain and suffering. The learned counsel further contends that under all heads the Tribunal has awarded lower compensation. The claimant was inpatient for 11 days and his income taken is also very less. He was an electric contractor and LIC agent and he had produced documents to show that he was working as LIC agent. The Tribunal has taken 7 M.F.A. No. 8369/2010 11.66% as disability to the whole body as against 35% disability to upper limb and the same has to be reconsidered.
8. Per contra learned counsel appearing for the insurance company contends that the Tribunal has given a definite finding that the driver of the vehicle was not having valid licence to drive the LMV in question and he was not having badge. Therefore, there is no reason to interfere with the order of the Tribunal.
9. Learned counsel for the Insurance Company fairly submits that while taking the income as Rs.3,000/- per month the Tribunal has committed an error and the same can be reconsidered. He further contends that while awarding compensation under all other heads the Tribunal has taken both the oral and documentary evidence and awarded just and reasonable compensation. 8 M.F.A. No. 8369/2010
10. Having heard the learned counsel for the appellant and the Insurance Company and on perusal of the judgment and award of the Tribunal, the following points arise for my consideration.
I. Whether the Tribunal committed an error in fastening the liability on the insured instead of insurer as contended?
II. Whether the Tribunal has committed an error in not awarding just and reasonable compensation and the same requires interference of this Court? On Point No. I
11. The Tribunal, in paragraph No. 11 of its judgment has considered the evidence available on record and after considering the present legal position comes to a conclusion that the driver cum owner of the vehicle was not authorized to drive a specific class of vehicle as on the date of accident. Further, the Tribunal has observed that Ex.R.1 the DL extract does not disclose about an 9 M.F.A. No. 8369/2010 endorsement for having issued DL to drive the class of vehicle i.e., the Autorickshaw cab in question by respondent No. 1 as on the date of accident. Hence, the insurance company should be absolved from liability to indemnify the insured of the vehicle in question.
12. Now in view of recent judgment of the Apex Court in the case of Mukund Dewangan Vs. Oriental Insurance Company Limited, AIR 2017 SC 3668 the Apex Court has held that even in the absence of an endorsement, if the vehicle is an LMV the insurer is liable and in the case on hand the driver is having licence to drive LMV goods vehicle and only at the time of accident he was not having badge and that has been emerged in the evidence of the witness of R.W.2 - the ARTO and also Ex.R.1 discloses that badge was not issued for want of stock and taking note of the material on record claimant is on higher pedestal compared to the judgment of the Apex Court in Mukumd 10 M.F.A. No. 8369/2010 Dewangan's case. Hence, I am of the opinion that the liability has to be fastened on the insurer and not on the insured and hence I answer point No. I in affirmative. Point No. II
13. Insofar as point No. II is concerned, the Tribunal while considering the evidence of P.W.1 and P.W.2 in respect of issue No. 3 has considered the nature of the injuries suffered by the claimant and taken his income as Rs.100/- and calculated the loss of income during the laid up period and also for future loss of income. On perusal of the evidence of the Doctor - P.W.2 who assessed the disability, the claimant has suffered disability of 35% of that particular limb and 11.66% to the whole body. The same has been accepted by the Tribunal. Therefore, I do not find any reason to interfere with the disability assessed by the Tribunal and the same is based on records and also the evidence of the Doctor - P.W.2.
11 M.F.A. No. 8369/2010
14. With regard to the quantum of compensation awarded under the head of pain and suffering, it appears that the same is little lesser. The claimant has suffered fracture on fore arm and fibula the Tribunal has awarded a sum of Rs.20,000/-. Taking note of the fact that the accident was of the year 2008, the Tribunal ought to have awarded a sum of Rs.35,000/-. Therefore, the compensation under this head is enhanced to Rs.35,000/-.
15. The claimant claims to be LIC agent and produced proof but with regard to his claim that he is an electric contractor, he had not produced any documents. The Tribunal, while calculating loss of income during the laid up period and future loss of income had taken the income of the claimant as Rs.3,000/- which is on lower side and it ought to have been taken as Rs.4,500/-. Keeping in view that the accident is of the year 2008 and having reconsidered the income taking in to consideration 12 M.F.A. No. 8369/2010 the disability and if the relevant multiplier, 17 is applied, then it comes to:
4500 X 12 X 11.66 X 17 /100 = 107038
16. Under the head of loss of income during the laid off period the Tribunal has awarded a sum of Rs.7,100/- taking his income as Rs.100/- per day. The claimant has suffered two fractures. For uniting of the fracture three months' time is required. Now that this Court has taken the monthly income of as Rs.4,500/-, the compensation payable under this head comes to :
4500 X 3 = 13500
17. The Tribunal has awarded a sum of Rs.2,900/- under the head food and nourishment, attendant and conveyance charges. The claimant was in hospital for 11 days. Considering the period of treatment, the amount awarded by the Tribunal appears to be on the lower side. 13 M.F.A. No. 8369/2010 Hence, the same is enhanced to Rs.10,000/- from Rs.2,900/-.
18. Insofar as medical expenses is considered, the Tribunal has awarded a sum of Rs.16,000/- and the same is based on the medical bills. Hence, I do not find any grounds to interfere with the amount awarded by the Tribunal under this particular head.
19. Insofar as loss of amenities of life and discomfort is concerned, the Tribunal has awarded a sum of Rs.20,000/-. The claimant has suffered fracture of right arm and fibula, the disability is 11.66% pertaining to whole body and he is aged about 29 years and he has to lead the rest of his life with this disability. Therefore, the compensation awarded by the Tribunal under this head appears to be on the lower side and the same is enhanced to Rs.30,000/-.
14 M.F.A. No. 8369/2010
20. In view of the above discussion, the appellant is entitled for compensation under different heads as under:
Sl. Different heads Amount
No.
1. Pain and suffering 35,000.00
2. Loss of future income 1,07,038.00
3. Food, nourishment, attendant 10,000.00
and conveyance charges
4. Medical expenses 16,000.00
5. Loss of amenities of life and 30,000.00
discomfort
6. Loss of income during the laid off 13,500.00
period
TOTAL 2,11,538.00
21. In view of the above, the following;
ORDER
1) The appeal is partly allowed.
2) The impugned judgment and award passed in MVC No. 537/2008 dated 05.05.2010 on the file of II Additional Senior Civil Judge and VI Additional 15 M.F.A. No. 8369/2010 MACT, Davanagere, is modified enhancing the total compensation payable to Rs.2,11,538/- as against Rs.1,47,359/- awarded by the Tribunal.
3) The liability fastened on the Insurance Company and the Insurance Company is directed to pay the compensation within six weeks from the date of receipt of copy of this judgment.
Sd/-
JUDGE LRS.