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2019 DIGILAW 1063 (KAR)

Bharathi Axa General Insurance Company Ltd v. Hanumanthi @ Hanumamma

2019-06-03

K.SOMASHEKAR

body2019
JUDGMENT : K. Somashekar, J. 1. Since these appeals arise out of the same impugned judgment, they are heard together and are disposed of by this common order. 2. Mfa No.7129/2015 is filed by the Insurance Company challenging the impugned judgment and award dated 30.05.2015 of the MACT & V Addl. Judge, Court of Small Causes, Bangalore passed in MVC No.3269/2014 granting compensation of Rs.7,22,000/- to the first respondent and Rs.3,50,000/- each to Respondents 2 and 3 with interest at 6% p.a. from the date of petition till the date of realisation. 3. Mfa No.7130/2015 is also filed by the Insurance Company challenging the impugned judgment and award dated 30.05.2015 of the MACT & V Addl. Judge, Court of Small Causes, Bangalore passed in MVC No.3270/2014 granting compensation of Rs.67,000/- to the first respondent herein with a direction to disburse the entire compensation amount with interest at 6% p.a. from the date of petition till the date of realisation by way of cash. 4. Mfa No.1286/2016 is filed by the appellant herein who is the claimant in MVC No.3270/2014 challenging the impugned judgment and award dated 30.05.2015 of the MACT & V Addl. Judge, Court of Small Causes, Bangalore not being satisfied with the compensation of Rs.67,000/- granted by the Tribunal and seeking enhancement of compensation. 5. Heard the learned counsel for the appellants as well as the respondents in the respective appeals. 6. The factual matrix is that on 11.05.2014 at about 4.30 p.m. when the deceased in MVC.3269/2014 Sri. Ambareesh along with one Basavaraj - petitioner in MVC.3270/2014 were proceeding in a motor cycle bearing Reg.No.KA-01/EG-9850 on Bangalore - Kolar NH-75 service road, when they reached in front of Aishwarya Daba, Bidarahalli Hobli, Bangalore, a tempo bearing Reg.No.KA-03/B-9066 coming in a rash and negligent manner and at high speed, dashed against their two-wheeler. As a result, the rider Ambareesh sustained grievous injuries and died at the spot and the pillion rider - appellant in MFA 1286/2016 sustained grievous injuries. The body of the deceased was sent for post-mortem and the legal representatives of the deceased had spent considerable amount towards transportation of dead body, funeral and obsequies ceremonies. The said Basavaraj / appellant in MFA 1286/2016 then took treatment as an in-patient in hospital for the injuries sustained. The body of the deceased was sent for post-mortem and the legal representatives of the deceased had spent considerable amount towards transportation of dead body, funeral and obsequies ceremonies. The said Basavaraj / appellant in MFA 1286/2016 then took treatment as an in-patient in hospital for the injuries sustained. Hence, the legal representatives of the deceased Ambareesh as well as injured Basavaraj had filed claim petitions before the Tribunal seeking compensation, which petitions were clubbed together and the Tribunal had passed a common judgment. It is this judgment which is under challenge in the present appeals by the Insurance Company questioning the liability and the quantum of compensation awarded in both the appeals as well as the claimant - injured in MVC 3270/2014 seeking enhancement of compensation. 7. Learned counsel Shri H.N. Keshava Prashanth appearing for the appellant - Insurance Company in MFA No.7129/2015 vehemently contends that the driver of the insured vehicle namely the Tempo, had no licence to drive a transport vehicle. Hence, he contends that the Tribunal erred in fastening the liability on the Insurance Company to pay the compensation and moreover, the excessive compensation being awarded, requires reduction suitably. He further contends that the Tribunal erred in adding 50% towards future prospects to the income of the deceased and thereby erred in granting huge compensation of Rs.11,52,000/- towards 'Loss of dependency' and hence the same is liable to be scaled down considerably. It is his further submission that future prospects is applicable only to permanent employees and in the case on hand, the deceased was a coolie and hence future prospects added by the Tribunal is erroneous and liable to be set aside. In respect of MFA No.7130/2015, the learned counsel for the Insurance Company places the very same contention that driver of the insured vehicle namely the Tempo, had no licence to drive a transport vehicle. Hence, he contends that the Tribunal erred in fastening the liability on the Insurance Company to pay the compensation to the claimant. Hence, the learned counsel prays this court to allow the appeals in MFA Nos.7129 and 7130/2015 filed by the Insurance Company and consequently to set aside the impugned judgment passed by the Tribunal. 8. Hence, he contends that the Tribunal erred in fastening the liability on the Insurance Company to pay the compensation to the claimant. Hence, the learned counsel prays this court to allow the appeals in MFA Nos.7129 and 7130/2015 filed by the Insurance Company and consequently to set aside the impugned judgment passed by the Tribunal. 8. Whereas the learned counsel for the appellant in MFA No.1286/2016 - injured contended that he had suffered head injury with sub-dural haemorrhage and was treated at Super Speciality Hospital, K.R. Puram and was treated as an in-patient and that he had suffered a lot of pain and agony and hence, the Tribunal erred in awarding a very meager compensation of Rs.10,000/- towards 'pain and suffering'. It is his further contention that the Tribunal failed to appreciate the fact that the claimant had spent more than Rs.1,00,000/- towards medical expenses and has awarded only Rs.42,000/- which is also on the lower side and requires to be enhanced considerably. Further, though the claimant was working as a coolie and earning Rs.500/- per day and he suffered loss of income during treatment period, no compensation has been awarded towards 'Loss of income'. Even a very meager award of Rs.5,000/- has been made towards incidental expenses, which also requires to be enhanced suitably. Hence, on all these grounds, the learned counsel for the appellant in MFA No.1286/2016 prays that the compensation awarded by the Tribunal may be enhanced suitably. 9. On a careful evaluation of the material on record and in view of the contentions put forth by the learned counsel for the parties, I do not find any error in the order passed by the Tribunal adding future prospects to the income of the deceased, as the deceased Ambareesh was aged just 29 years as on the date of the accident and he would have earned substantially in future if he had survived, in spite of the fact that he did not have a permanent employment. Further, as regards the contention of the learned counsel for the Insurance Company that the deceased did not have a licence to drive a transport vehicle, it is relevant to refer to the judgment rendered by the Apex Court in MUKUND DEWANGAN VS. ORIENTAL INSURANCE CO.LTD., (2017) 14 SCC 663 . Further, as regards the contention of the learned counsel for the Insurance Company that the deceased did not have a licence to drive a transport vehicle, it is relevant to refer to the judgment rendered by the Apex Court in MUKUND DEWANGAN VS. ORIENTAL INSURANCE CO.LTD., (2017) 14 SCC 663 . In the said judgment, the Hon'ble Apex Court has answered the question against the insurer and in favour of the claimant holding that the insurer cannot avoid liability only on the ground of absence of Transport Endorsement. Therefore, the issue is no longer res integra. Hence, I do not find any error in the order of the Tribunal fastening the liability on the Insurance Company to pay the compensation. The order passed by the Tribunal is in line with the said decision, which does not call for any interference in these appeals. Hence, the appeals in MFA No.7129/2015 and MFA No.7130/2015 stand dismissed. As far as MFA No.1286/2016 is concerned, since the appellant - injured had suffered head injury with sub-dural haemorrhage and had taken treatment as an in-patient in hospital and having spent considerable amounts towards medical expenses, I find that it would be just and proper to enhance the compensation granted to him globally by some amount having regard to the pain and agony he had undergone and the loss of earnings that he would have suffered during the said period. Hence, I hereby enhance the compensation granted to the petitioner - injured in MVC.3270/2014 globally by a sum of Rs.33,000/, which shall not carry any interest. 10. Accordingly, I pass the following: ORDER MFA Nos.7129 and 7130/2015 filed by the Insurance Company are dismissed. The impugned judgment and award dated 30.05.2015 of the MACT & V Addl. Judge, Court of Small Causes, Bangalore passed in MVC No.3269/2014 remains undisturbed. However, MFA No.1286/2016 filed by the appellant - injured is allowed in part. In modification of the impugned judgment and award dated 30.05.2015 of the MACT & V Addl. Judge, Court of Small Causes, Bangalore passed in MVC No.3270/2014, in addition to the compensation of Rs.67,000/- with 6% interest awarded by the Tribunal, the appellant - injured is hereby granted a global compensation of Rs.33,000/-, which shall not carry any interest. The enhanced compensation would come to Rs.33,000/-. Judge, Court of Small Causes, Bangalore passed in MVC No.3270/2014, in addition to the compensation of Rs.67,000/- with 6% interest awarded by the Tribunal, the appellant - injured is hereby granted a global compensation of Rs.33,000/-, which shall not carry any interest. The enhanced compensation would come to Rs.33,000/-. The Insurance Company shall deposit the said compensation of Rs.33,000/- before the concerned MACT within a period of four weeks from the date of receipt of a copy of this judgment. On such deposit, the entire amount shall be released to Shri Basavaraj - the appellant in MFA No.1286/2016, on proper identification. Office to draw the decree accordingly.