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2011 DIGILAW 604 (KAR)

New India Assurance Co. Ltd. v. Naseer Ahmed

2011-06-14

H.S.KEMPANNA, K.L.MANJUNATH

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JUDGMENT H.S. KEMPANNA, J.—MFA 6687/2006 has been filed by the Insurance Company. MFACROB 83/2007 has been filed by the claimant seeking for enhancement of the compensation. As the appeal and the cross objection are directed against the judgment and award dated 4.4.2006 passed in MVC No. 62/2002 by the Addl. MACT, KGF. they are heard together and disposed of by this common judgment. 2. MFA 6687/2006 has been preferred by the appellant-Insurance Company challenging the liability and also the quantum. Cross objection has been preferred by the claimant seeking for enhancement of the compensation that has been awarded by the Tribunal. 3. The claimant-Nazeer Ahmed instituted claim petition in respect of the personal injuries which he sustained in a motor accident that took place on 21.10.2002 involving the Maxi Cab bearing Registration No. KA-07-2408, owned by Zameer Ahmed, the first respondent before the Tribunal and insured with the appellant-Insurance Company in MFA 6687/ 2006 at the relevant point of time. 4. It is the case of the claimant that he was aged 25 years an electrician by profession earning more than Rs. 5,000/- p.m. On the date of accident i.e. 21.10.2002 he was travelling in the maxi cab bearing No. KA-07-2408 from Bangarpet to Kolar. When the said motor cycle reached Dimba gate at about 4 p.m. on account of rash and negligent driving of the same by its driver, he lost control over the same, due to which he went and dashed against the road side bridge resulting in turning turtle of the maxi cab in which the claimant was proceeding. On account of the accident he sustained fracture to his left leg which resulted in auto-amputation and compound fracture of his right leg. He took treatment at SNR hospital, Kolar initially and later at Hosmat hospital, Bangalore, for a period of 26 days. He spent huge money for the treatment of his injuries. During his stay in the hospital he underwent four surgeries which comprised of amputation of his left lower limb, setting right of the fracture sustained to his right leg, skin grafting at the point of amputation of the stump of his left limb. He was treated by P.W. 3 the medical officer at the said hospital. During his stay in the hospital he underwent four surgeries which comprised of amputation of his left lower limb, setting right of the fracture sustained to his right leg, skin grafting at the point of amputation of the stump of his left limb. He was treated by P.W. 3 the medical officer at the said hospital. According to P.W. 3 the claimant on account of the injuries sustained has disability to the left lower limb to an extent of 70% and to the right limb to anextent of 30% and to the whole body to an extent of 40%. On account of the injuries sustained he is unable to carry on his avocation which has resulted in loss of income to him. Accordingly, he sought for grant of compensation from the respondents. 5. The appellant-insurer after service of notice appeared and contended that the accident firstly has not taken place on account of the rash and negligent driving of the maxi cab by its driver. They further contended that the maxi cab was a contract carriage and it was not expected to pick-up the passengers on the way. Since, in this case the claimant had boarded the Maxi cab on the way, the owner has committed breach of conditions of the permit. It was also further contended that since it was a contract carriage, it was to ply from one point to another and as the owner was not permitted to carry any passengers in between, since in this case the claimant has been picked-up on the way, there is breach of conditions of the permit in respect of the vehicle issued and hence they are not liable to pay any compensation. Accordingly, the appellant-insurer sought for dismissal of the petition as against them. 6. The Tribunal considering the oral and documentary evidence on record held that the accident in question has taken place on account of the rash and negligent driving of the Maxi cab by its driver and accordingly, the claimant has established actionable negligence. Further, looking to the evidence of the claimant and the documents placed on record, awarded compensation of Rs. 4,47,800/- with interest at 6% p.a. from the date of the petition till realisation. Further, it saddled the liability of payment of compensation on the appellant-insurer. 7. The appellant-insurance co. Further, looking to the evidence of the claimant and the documents placed on record, awarded compensation of Rs. 4,47,800/- with interest at 6% p.a. from the date of the petition till realisation. Further, it saddled the liability of payment of compensation on the appellant-insurer. 7. The appellant-insurance co. being aggrieved of the liability fastened on them and the quantum of compensation have preferred MFA 6687/2006. 8. The claimant being aggrieved by the quantum of compensation has preferred MFA CROB 83/2007. 9. The learned counsel for the Insurance Company submitted that as the driver of the Maxi cab has picked up the claimant on the way as the vehicle in question is a contract carriage permitted to ply from one point to another, the owner has committed breach of permit conditions, as such no liability can be fastened on them. They further contended that the compensation that has been awarded to the claimant under various heads having regard to the nature and degree of the injuries sustained and the percentage of disability is exorbitant. He further contended that the Tribunal without appreciating the material on record in the right perspective has come to an erroneous conclusion that there is no violation of terms of the permit committed by the owner and there by has wrongfully fastened the liability on the appellant-insurance co. which cannot be sustained. Hence, a case for interference is made out. 10. Per contra, the learned counsel for the claimant/cross-objector, while supporting the impugned judgment and award of the Tribunal in respect of the liability fastened on the insurance Company, submitted that it has erred in not awarding commensurate compensation to the claimant under all heads despite the evidence on record including that of the medical officer reveals that the left lower limb of the claimant has been amputated below the knee and he having sustained fracture to his right leg apart from other injuries which is supported by evidence and the documents placed on record. Therefore, a case for enhancement is made out. 11. Taking the rival submissions into consideration, the evidence and the documents placed on record, the points that arise for our consideration are: (i) Whether the impugned judgment and award passed by the Tribunal fastening the liability on the appellant-insurance co. is sustainable? Therefore, a case for enhancement is made out. 11. Taking the rival submissions into consideration, the evidence and the documents placed on record, the points that arise for our consideration are: (i) Whether the impugned judgment and award passed by the Tribunal fastening the liability on the appellant-insurance co. is sustainable? (ii) Whether the quantum of compensation that has been awarded by the tribunal, as contended by the appellant-insurance company, is excessive or whether the claimant has made out a case for enhancement? 12. Re-point No. 1 Facts are not in dispute. The claimant having met with accident, injuries sustained, treatment taken and the amount spent are not disputed. The accident having taken place on account of the actionable negligence of the driver of the Maxi cab is also not disputed. It is the case of the Insurance Company since the vehicle involved in the accident i.e. the Maxi cab is a contract carriage vehicle for which the permit had been issued for being plied from one point to the other, as the owner has permitted the claimant to be carried in the said vehicle on the way of its journey, there is breach of conditions of permit issued in respect of the said contract carriage and, therefore, no liability can be fastened on the appellant-Insurance Company. A perusal of the materials on record reveal that though the Maxi cab involved in the accident was initially granted permit to run as contract carriage subsequently, the owner has taken permission from the competent authority to ply the same as a stage carriage on the date of accident. In view of this it automatically follows the vehicle involved in the accident was plied in accordance with the conditions of the permit issued by the RTO as stage carriage. Once the vehicle has been permitted to ply as a stage arrange by virtue of the permit, the contention of the Insurance Company the owner has committed breach of terms and conditions of the permit cannot stand to any reason. Once the vehicle has been permitted to ply as a stage arrange by virtue of the permit, the contention of the Insurance Company the owner has committed breach of terms and conditions of the permit cannot stand to any reason. Accordingly, we are of the view that as the owner has obtained requisite permit to ply his vehicle as stage carriage issued from a competent authority, there is no merit in the contention of the Insurance Company to hold that he has omitted any breach of terms of the permit and accordingly, we find no merit in the appeal preferred by the Insurance Company as they have not disputed the liability covering the risk of the vehicle involved in the accident. Accordingly, we answer point No. 1. 13. Re : point No. 2 : Coming to the question of quantum that has been awarded to the claimant, the tribunal by its impugned judgment and award has awarded a sum of Rs. 4,47,800/- with interest at 6% p.a. from the date of the petition till realisation. The evidence of the claimant reveals that in the impugned accident he has sustained fractures to his left leg and right leg. His left leg has been amputated below the knee. The fracture sustained to his right leg has been set right under a surgery. He was in the hospital, according to him, for a period of 26 days, firstly at SNR hospital, Kolar and nextly at Hosmat hospital, Bangalore. He was treated by P.W. 3-Dr. B.K. Sudhkanth. His evidence reveals (hat the left leg of the claimant has been amputated at middle one-third of the left leg. Further, fracture sustained to his right leg has been set right by interlocking and nailing. His evidence further discloses that he has disability to the left lower limb to an extent of 70% and right lower limb to an extent of 30% and to the whole body at 40%. The Tribunal taking these factors into consideration has awarded a sum of Rs. 70,000/- towards injury, pain and suffering. Further, the tribunal has awarded a sum of Rs. 25,000/- towards loss of amenities taking into consideration the nature and degree of the injuries sustained. We are of the view that the compensation awarded by the Tribunal towards injury, pain and suffering though on the higher side, in view of the Tribunal having awarded Rs. Further, the tribunal has awarded a sum of Rs. 25,000/- towards loss of amenities taking into consideration the nature and degree of the injuries sustained. We are of the view that the compensation awarded by the Tribunal towards injury, pain and suffering though on the higher side, in view of the Tribunal having awarded Rs. 25,000/- towards loss of amenities, the compensation awarded towards injury, pain and suffering would compensate towards the compensation that has been awarded towards loss of amenities and, therefore, we do not find any justification to modify the compensation awarded to the claimant under the said heads. Further, the Tribunal has awarded a sum of Rs. 1,05,000/- towards medical expenses relying upon the medical bills which are at Exs. P 12, P13 and P24 to P51. The Tribunal accepting the genuineness of the said bills has awarded the said sum of Rs. 1,05,000/- towards medical expenses. No grievance in respect of the same is made before this Court. Therefore, in our view, the same does not call for any modification. The evidence on record reveals that the claimant has remained as in-patient in hospital for a period of 26 days. During the said period, the materials on record reveal that he has undergone four surgeries which includes amputation of his left lower limb below the knee. He has been treated firstly at SNR hospital and later at Hosmat hospital, Bangalore. Even after his discharge, it automatically follows, Having regard to the nature of injuries that he has sustained, he must have spent considerable amount towards conveyance, nourishing food and attendant charges. The Tribunal has not considered the case of the claimant to award any compensation under this head. The accident has taken place on 21.10.2002. Taking these aspects into consideration, we deem fit to award a sum of Rs. 10,000/- towards conveyance, nourishing food and attendant charges. The next aspect that dwells upon for our consideration is the determination of the income of the claimant, the compensation that has to be awarded towards loss of income during laid-up period and towards loss of future income. The claimant has claimed that as on the date of the accident he is aged 25 years, electrician by profession earning Rs. The next aspect that dwells upon for our consideration is the determination of the income of the claimant, the compensation that has to be awarded towards loss of income during laid-up period and towards loss of future income. The claimant has claimed that as on the date of the accident he is aged 25 years, electrician by profession earning Rs. 5,000/- p.m. In support of his claim in respect of the income he has examined his employer Salim Ahmed-P.W. 2 and has also produced salary certificate issued which is at Ex. P8. The evidence of P.W. 2 no doubt goes to show that the claimant was being paid a sum of Rs. 5,000/- p.m. But unfortunately P.W. 2 has not placed any registers or muster rolls disclosing the disbursement of payment made to the claimant and other workers working in his establishment. In the absence of the same as the claimant’s profession has not been disputed being an electrician, taking the date of accident which has taken place on 22.10.2002, in the circumstance, we deem fit to determine his income at Rs. 4,000/- p.m. as against Rs. 3,000/- p.m. determined by the Tribunal. Having regard to the nature of fractures that the claimant has sustained and the period for which he was in the two hospitals at Kolar and Bangalore and the subsequent period for which he has taken treatment, we are of the view that the claimant is entitled to additional sum of Rs. 12,000/- in addition to Rs. 3,000/- awarded by the Tribunal towards loss of income during laid-up period. The next question that falls for our consideration is the compensation to be awarded towards loss of future income. The claimant admittedly is aged 25 years. Therefore, the proper multiplier that is applicable to the facts of the case would be 18. His income has been determined at Rs. 4,000/- p.m. The evidence of P.W. 3-medical officer reveals that the claimant has functional disability to the left lower limb to an extent of 70% on account of the amputation of the left leg below the knee and 30% to the right lower limb on account of the fracture sustained. Therefore, under these circumstances, we deem fit to take the functional physical disability to the whole body a 60%. Therefore, under these circumstances, we deem fit to take the functional physical disability to the whole body a 60%. Taking these factors into consideration we are of the view that the claimant would be entitled to a sum of Rs. 5,18,400/- (4,000 x 12 x 18 x 60/100) out of which Rs. 2,44,800/- has to be deducted which has been awarded by the tribunal-Deducting the same it comes to Rs. 2,73,600/- which the claimant would be entitled to an enhanced compensation towards loss of future income. Thus, in our view, the claimant in all would be entitled to enhanced compensation of Rs. 2,95,600/- which we round it of to Rs. 2,95,000/- with interest at 6% p.a. from the date of the petition till realisation. Accordingly, the appeal preferred by the Insurance Company has to fail and the cross objection preferred by the claimant has to be allowed in part. 14. In the result, for the foregoing reasons, we proceed to pass the following : ORDER (i) MFA 6687/06 preferred by the Insurance Company is dismissed; (ii) MFA CROB 83/2007 is partly allowed. The impugned judgment and award passed by the Tribunal is modified and the appellant-cross objector is awarded an enhanced compensation of Rs. 2,95,000/- with interest at 6% p.a. from the date of the petition till realisation over and above the compensation that has been awarded by the Tribunal. (iii) The appellant-Insurance Company shall deposit the entire enhanced compensation with interest before the tribunal within four weeks, from the date of receipt of copy of judgment and award. (iv) Out of enhanced compensation of Rs. 2,95,000/-, a sum of Rs. 2,40,000/- with proportionate interest shall be deposited in the name of the claimant/cross-objector in any Nationalised/Scheduled Bank for a period of five years. He is entitled to withdraw the interest accrued on the said deposit periodically. The balance with proportionate interest is ordered to be released in his favour. 15. Office to draw the award accordingly. 16. The amount in deposit if any made by the appellant-insurance co. is ordered to be transmitted to the jurisdictional tribunal for making payment to the claimant.