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2019 DIGILAW 1105 (KAR)

I. M. Shivayogi v. New India Assu Co. Ltd.

2019-06-04

K.SOMASHEKAR

body2019
JUDGMENT : K. Somashekar, J. Since both the appeals arise out of the same judgment and award rendered by the Tribunal, they are heard together and are finally disposed of by this order. 2. The appeal in MFA.No.310/2016 is filed by the claimant - appellant who is the injured seeking enhancement of compensation awarded by the Tribunal and the appeal in MFA.No.8358/2015 is filed by the appellant Insurer - The New India Assurance Co. Ltd, challenging the quantum of compensation awarded by the Tribunal as well as the liability. By its judgment dated 06.08.2015 in MVC No.538/2014, the Tribunal has awarded compensation in a sum of Rs.1,74,732/- to the claimant - injured. Being not satisfied with the said compensation, the claimant has filed MFA No.310/2016 seeking enhancement of compensation. 3. Heard the learned counsel for the claimant - appellant in MFA No.310/2016 as well as the learned counsel for the appellant in MFA No.8358/2015 - The New India Assurance Co. Ltd. and perused the impugned judgment as well as the material on record. 4. The factual matrix is that on 11.08.2014 at about 10.00 p.m. when the claimant was proceeding by walk in the left side of the road to reach the bus stand, in front of SJM Ladies Hostel on B.D. road, an auto rickshaw bearing Reg.No.KA-16-A-1275 came in a rash and negligent manner and at high speed and dashed against him, as a result of which he fell down and sustained grievous injuries. Immediately, he was admitted to Chitradurga Government Hospital and was an in-patient for a period of 11 days during which time he was subjected to surgery and spent more than Rs.20,000/- towards medical expenses. Prior to the accident, he was doing coolie work and was earning Rs.250/- to Rs.300/- per day to eke out his livelihood. Since he was not able to perform his coolie work as before, he filed a claim petition before the Tribunal seeking compensation. 5. On receipt of notice, the owner of the offending autorickshaw - Respondent No.1 appeared and filed objection denying the entire averments of the claim petition and contended that since the vehicle was duly insured with the second respondent, if any liability arose, the same requires to be fastened to the Insurance Company and accordingly prayed for dismissal of the petition. On receipt of notice, the owner of the offending autorickshaw - Respondent No.1 appeared and filed objection denying the entire averments of the claim petition and contended that since the vehicle was duly insured with the second respondent, if any liability arose, the same requires to be fastened to the Insurance Company and accordingly prayed for dismissal of the petition. Respondent No.2 - Insurance Company filed its objection admitting the insurance policy issued to the offending vehicle but contended that the driver of the offending autorickshaw did not hold a valid and effective driving licence as on the date of the accident and hence there is violation of policy conditions. Therefore, the liability was subject to terms and conditions of the policy and hence prayed for dismissal of the petition. The Tribunal, after evaluating the oral and documentary evidence held that the accident had occurred due to rash and negligence of the driver of the offending autorickshaw and hence proceeded to award compensation of Rs.1,74,750/- with interest at 7.5% per annum from the date of petition till the date of deposit and directed Respondent No.2 - Insurer to deposit the said compensation. The appellant - injured has filed MFA No.310/2016 seeking for enhancement of compensation and the Insurance Company has filed MFA No.8358/2015 seeking to exonerate the Insurer of its liability. 6. Learned counsel for the claimant/appellant in MFA No.310/2016 contends that the accident being of the year 2014 and there being no proof of income, even as per the settled norms of the Lok Adalath, the income of the injured ought to be taken at Rs.8,500/- per month in order to compute the compensation to be awarded towards 'Permanent disability'. The Tribunal has erred in taking his notional income at Rs.4,500/- per month and hence the learned counsel contends that the same requires to be enhanced suitably. It is the further contention of the learned counsel that the compensation towards 'Loss of income during treatment period' also requires to be enhanced taking the income of the injured at Rs.8,500/-. Further, the learned counsel contends that the appellant suffered various permanent physical disabilities and has undergone much pain and mental agony besides affecting his future happiness and comforts. Hence, he contends that the Tribunal has erred in not granting any compensation towards 'Loss of amenities' and the same may be awarded suitably. Further, the learned counsel contends that the appellant suffered various permanent physical disabilities and has undergone much pain and mental agony besides affecting his future happiness and comforts. Hence, he contends that the Tribunal has erred in not granting any compensation towards 'Loss of amenities' and the same may be awarded suitably. Thus the learned counsel contends that taking into consideration these aspects, the compensation awarded by the Tribunal may be enhanced by this Court suitably. 7. Learned counsel for appellant in MFA No.8358/2015 - Insurer contends that the Tribunal committed grave error in law and facts in making the Insurance Company liable to pay the compensation. Even after establishing breach of the terms of the insurance policy by entrusting the passenger carrying commercial vehicle to the driver who had no licence to drive the same, the Tribunal erred in fastening the liability on the Insurance Company. Hence, he contends that his appeal be allowed and the liability be fastened on the owner of the Insurance Company. 8. Having heard the learned counsel for the parties, I find that the accident being of the year 2014, the income of the appellant ought to have been taken at Rs.8,500/- instead of Rs.4,500/- adopted by the Tribunal. Hence, as per the settled norms, the notional income of the claimant - appellant is hereby taken at Rs.8,500/- to compute the compensation towards 'Loss of income due to permanent disability'. Hence, with the income at Rs.8,500/- and multiplier 9' and disability at 15%, the compensation towards 'Permanent disability' would come to Rs.1,37,700/- (8500 x 12 x 9 x 15/100) as against Rs.72,900/- awarded by the Tribunal. Further, the compensation towards 'Loss of income during laid up period' would come to Rs.34,000/- (Rs.8500/- x 4) as against Rs.18,000/- awarded by the Tribunal. Further, I find that the Tribunal has erred in not awarding any compensation towards 'Loss of amenities'. Hence, I hereby award a sum of Rs.25,000/- towards 'Loss of amenities'. Hence, the enhanced compensation would totally come to Rs.1,05,800/-. 9. In so far as the liability aspect is concerned, in view of the decision of the Apex Court in MUKUND DEWANGAN VS. Hence, I hereby award a sum of Rs.25,000/- towards 'Loss of amenities'. Hence, the enhanced compensation would totally come to Rs.1,05,800/-. 9. In so far as the liability aspect is concerned, in view of the decision of the Apex Court in MUKUND DEWANGAN VS. ORIENTAL INSURANCE CO.LTD., (2017) 14 SCC 663 wherein 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, there is no fault in the Tribunal directing the Insurer to deposit the compensation amount. Hence, the appeal in MFA 8358/2015 filed by the Insurance Company requires to be dismissed. 10. In view of the discussion made above and with the altered factors, the compensation is re-worked out as under:- Particulars Compensation awarded by MACT Compensation enhanced by this Court Total Pain and suffering 45,000 Nil 45,000 Treatment expenses 3,832 Nil 3,832 Permanent disability 72,900 64,800 1,37,700 Loss of income during treatment and laid up period 18,000 16,000 34,000 Attendant and nourishment 15,000 Nil 15,000 Future treatment expenses including removal of implants 15,000 Nil 15,000 Conveyance and incidental charges 5,000 Nil 5,000 Loss of amenities Nil 25,000 25,000 TOTAL 1,74,732 1,05,800 2,80,532 11. Accordingly, I proceed to pass the following: ORDER MFA No.310/2016 is allowed in part. The impugned judgment and award dated 06.08.2015 passed by the Tribunal in MVC No.538/2014 is hereby modified. The compensation payable to the appellant/claimant is enhanced from Rs.1,74,732/- to Rs.2,80,532/-. The total enhanced compensation would come to Rs.1,05,800/-. The enhanced compensation shall carry interest at the rate of 6% per annum. The first respondent - M/s. New India Assu. Co. Ltd. shall deposit the enhanced compensation with interest before the Tribunal within four weeks from the date of receipt of certified copy of this judgment. On such deposit, the same shall be disbursed to the appellant/claimant on proper identification. The amount already in deposit if any, shall be adjusted. The LCR shall be returned to the concerned Tribunal, forthwith. However, the impugned judgment and award, in so far as it relates to the rate of interest is concerned, shall remain unaltered. The appeal in MFA No.8358/2015 filed by the Insurer is hereby dismissed. Office to draw the decree accordingly.