Karnataka High Court
Sri Suresh K vs Sri Lal Sab on 5 July, 2023
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NC: 2023:KHC:23222
MFA No. 8153 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE C M JOSHI
MISCELLANEOUS FIRST APPEAL NO. 8153 OF 2018 (MV-I)
BETWEEN:
SRI. SURESH K.,
S/O. KEBBAIAH,
AGED ABOUT 20 YEARS,
R/AT 179, DODDA ALADAMARADA ROAD,
CHUNCHANAKUPPE, TAVAREKERE HOBLI,
BANGALORE SOUTH TALUK,
BANGALORE - 562 130.
...APPELLANT
(BY SRI. SHRIPAD V. SHASTRI, ADVOCATE)
AND:
1. SRI. LAL SAB,
S/O. HUSSEN SAB,
Digitally R/O NO.140, AMBEDKAR COLONY,
signed by T S
NAGARATHNA LAGGERE,
Location: High
Court of BANGALORE - 058.
Karnataka
2. TATA AIG GENERAL INSU., CO. LTD.,
NO.69, 2ND FLOOR, J P & DEVI
JAMBUKESHWARA ARCADE,
MILLER'S ROAD,
BANGALORE - 25.
BY ITS MANAGER.
...RESPONDENTS
(BY SRI. Y.P. VENKATAPATHY, ADVOCATE FOR R2;
R1 - NOTICE DISPENSED WITH
VIDE ORDER DATED 19/7/22)
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NC: 2023:KHC:23222
MFA No. 8153 of 2018
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 15.07.2016 PASSED IN MVC
NO.2012/2015 ON THE FILE OF THE XIII ADDITIONAL SMALL
CAUSE JUDGE & MEMBER MACT, BENGALURU, [SCCH-15],
PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
By consent of both the parties, the matter is taken up for final disposal, though it is posted for Admission and heard the learned counsel for the appellant and the counsel for the respondent No.2.
2. This appeal is arising out of the judgment and award passed in MVC.No.2012/2015 by the learned XIII Additional Small Causes Judge & Member MACT, Bengaluru dated 15.07.2016.
Brief facts of the case:-
3. The petitioner contended before the Tribunal that on 05.03.2015 at about 2.00 p.m. while he was proceeding on a motor cycle bearing no.KA.02/H-1821 as pillion rider, it was hit by a tipper lorry bearing no.KA.01/4982 from behind, -3- NC: 2023:KHC:23222 MFA No. 8153 of 2018 resulting in accidental injuries to the petitioner. The case was registered in Tavarekere police station under crime no. 141/2015 and after investigation, charge sheet was laid against the driver of the tipper lorry. Petitioner contended that he was aged about 18 years, working as a coolie and earning Rs.12,000/- per month and has spent money for his treatment, suffered permanent disability and therefore adequate compensation be awarded to him from the owner and the insurer of the tipper lorry.
4. On issuance of notice, the respondent no.1 did not appear despite service of notice and therefore placed exparte. The respondent no.2 appeared through its counsel and filed objections.
5. Respondent no.2 admitted that the tipper lorry was covered by the insurance policy issued by the Insurance company, but, denied that accident was due to negligence on the part of the lorry driver and the petitioner had sustained permanent disability. It further contends that the compensation claimed is highly exorbitant, imaginary and untenable in law and that there was violation of the conditions of the policy and as such it be absolved from the liability.
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NC: 2023:KHC:23222 MFA No. 8153 of 2018
6. On the basis of the above, the Tribunal framed appropriate issues and the petitioner was examined as PW-1 and the doctor who assessed the disability was examined as PW-2 and Ex.P-1 to P-13 were marked. The official of the respondent no.2 was examined as RW-1 and an official of RTO was examined as RW-2. Ex.R-1 to R-9 were marked in evidence.
7. After hearing both the sides, the Tribunal awarded a compensation of Rs.4,53,000/- by holding that the petitioner had sustained 15% permanent disability and he was earning Rs.7,000/- per month. The Tribunal also held that respondent no.1 is liable to pay the compensation, since the driver was not having the valid driving license as on the date of the accident. The compensation was awarded by the Tribunal under the following heads:-
Compensation Sl.No. Nature of the heads (Rs.)
1. Pain and suffering 40,000=00
2. Loss of amenities of life 21,000=00 Medicine and hospital
3. 64,500=00 expenses Conveyance, Nourished food
4. 10,000=00 and incidental expenses
5. Loss of earning for the laid 20,000=00 -5- NC: 2023:KHC:23222 MFA No. 8153 of 2018 up period
6. Future loss of earning 2,27,000=00
7. Future medial expenses 20,000=00 Total 4,02,500=00
8. Being aggrieved by the quantum of the compensation awarded by the Tribunal, the petitioner has approached this court in appeal.
9. Learned counsel appearing for the appellant submits that the petitioner had suffered permanent disability on account of spinal injuries he suffered and there was weakness in his lower limbs which was not properly assessed by the Tribunal. It is submitted that though the PW-2 has assessed the disability at 50%, the Tribunal erred in holding that the disability was only to extent of 15%. He also contended that the notional income of the petitioner has been taken at Rs.7,000/- even though petitioner had contended that he was earning Rs.12,000/- per month. It is submitted that the fastening of the liability on the owner of the vehicle is also erroneous and he relies on the decision of PAPPU V/S VINOD KUMAR LAMBA reported in (2018) 3 SCC 208 .-6-
NC: 2023:KHC:23222 MFA No. 8153 of 2018
10. Per contra, the learned counsel for the respondent no.2-insurance company contended that the Tribunal has awarded just and proper compensation to the petitioner and the driver of the tipper lorry was not having any valid driving license. Therefore, the liability has been fastened upon the respondent no.1. He contended that subsequent renewal of the driving license would not bring in the liability of respondent no.2
11. The decision of the Apex Court in the case of PAPPU V/S VINOD KUMAR LAMBA coupled with the decision of the Apex Court in the case of SWARAN SINGH reported in (2004) 3 SCC 297 lay down that if for any reason, the driving license of the driver was not in force and if there is no disqualification for him for the driving, the principle of pay and recovery has to be employed. It is worth to note that the petitioner here in was third party and he had no role to know as to whether, the respondent no.1 had the knowledge of expiry of the driving license of the driver of the tipper lorry. Therefore, when the evidence on record clearly establish that driver of the tipper lorry had driving license renewed on 09.03.2015 and the accident had happened on 05.03.2015 which is just 4 days -7- NC: 2023:KHC:23222 MFA No. 8153 of 2018 prior to the renewal, it is a clear case wherein the principles laid down in the case of Swaran Singh is applicable. Therefore, the Tribunal would have fastened the liability on respondent no.2 initially, with liberty to respondent no.2 to recover the same from respondent no.1. Therefore, this issue regarding liability has to be answered holding that the respondent no.2 has to pay the compensation amount and then it is at liberty to recover the same from the respondent no.1.
12. So far as the quantum of the compensation is concerned, the perusal of the evidence of the PW-2 coupled with Wound Certificate produced at Ex.P-5, discharge summary produced at Ex.P-6 and that of the KIMS Hospital which is Ex.P- 9 show that the petitioner had suffered wedge compression fracture of L-1 vertebral body with retropulsion of fracture segment causing significant thical and spinal cord compression. It was also noticed that there was wedge compression fracture of T12 vertebral body and fracture of 12th rib. Further it is also stated in the Ex.P-9, that, he was advised to wear KT brace while sitting, standing and walking etc., and not to bend forward etc. Ultimately PW-2 in his evidence before the Tribunal states that there is weakness in the both the lower -8- NC: 2023:KHC:23222 MFA No. 8153 of 2018 limbs and there was also ORIF in respect of the pedicular bone and there is 50% disability to the whole body. In his opinion there is spinal disability with mobility component. The cross examination of PW-2 show that denials alone are elicited. PW- 2 ultimately comes to conclusion that there is 50% disability, but the Tribunal holds that there is 15% functional disability to him. The said assessment being made by the Tribunal is on the basis of its own assessment and it had benefit of seeing the petitioner before it. Therefore, without there being any material to know as to how the functional disability was assessed by the Tribunal, the opinion formed by the Tribunal cannot be interfered with this appeal. The direct nexus between the spinal injury and the stated disability and weakness in the limbs should have been perceived by the Tribunal while recording the evidence of PW-1. Under these circumstances, this court comes to the conclusion that assessment of the disability cannot be interfered.
13. So far as the notional income is concerned, the Tribunal has assessed the notional income at Rs.7,000/- per month in the absence of any documentary evidence to prove the income. The petitioner is aged about 18 years and working -9- NC: 2023:KHC:23222 MFA No. 8153 of 2018 as a coolie. The guidelines issued by Karnataka State Legal Services Authority for settlement of the disputes before the Lok-Adalat prescribes the notional income of Rs.9,000/- per month for the year 2015. In umpteen number of decisions, it is held that, that the guidelines issued by KSLSA are in general conformity with wages fixed under Minimum Wages Act. Therefore, the notional income of the claimant has to be held at Rs.9,000/- per month. Hence, the loss of future income is calculated as Rs.9,000/- x 12 x 18 x 15% = Rs.2,91,600/-.
14. The records reveal that the petitioner was inpatient for 5 days initially and there after 18 days, totally 23 days. The Tribunal has awarded a sum of Rs.10,000/- under the head of diet and conveyance. Evidently the compensation under this head needs to enhanced considering the fact that he was inpatient for 23 days. Hence, a sum of Rs.25,000/- is awarded to him under this head.
15. As a consequence of notional income being held at Rs.9,000/-, it can easily be said that since petitioner was unable to resume him work at least for a period of three months and therefore, a sum of Rs.27,000/- is awarded to him under the head loss of income during the laid up period. The
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NC: 2023:KHC:23222 MFA No. 8153 of 2018 compensation awarded under remaining heads are adequate and do not require any enhancement.
16. Hence, the petitioner is entitled for a total compensation under the following heads:
Sl.No. Nature of the heads Compensation (Rs.)
1. Pain and suffering 40,000=00
2. Loss of amenities of life 21,000=00
3. Medicine and hospital 64,500=00 expenses
4. Conveyance, Nourished food 25,000=00 and incidental expenses
5. Loss of earning for the laid 27,000=00 up period
6. Future loss of earning 2,91,600=00
7. Future medial expenses 20,000=00 Total 4,89,100=00 Less compensation awarded 4,02,500=00 by the Tribunal Addl. Compensation 86,600=00 awarded
17. In view of the aforesaid reasons, appeal deserves to be allowed in part. Hence, the following order:-
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NC: 2023:KHC:23222
MFA No. 8153 of 2018
ORDER
i. The appeal is allowed-in-part.
ii. The appellant is entitled for the additional
compensation of Rs.86,600/- in addition to
compensation awarded by the Tribunal along with interest at the rate of 6% per annum from the date of the petition till deposit before the Tribunal. The impugned judgment and award passed by the Tribunal is modified accordingly. iii. Insurance company is directed to deposit the compensation amount within eight weeks and is at liberty to recover the same from respondent no.1 by filing Execution Petition. iv. The rest of the conditions imposed by the Tribunal remains unaltered.
Sd/-
JUDGE TS List No.: 1 Sl No.: 71