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2019 DIGILAW 1132 (KAR)

Oriental Insurance Co. Ltd v. Shabir Ahmed

2019-06-06

H.T.NARENDRA PRASAD

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JUDGMENT : H.T. Narendra Prasad, J. This appeal is filed by Insurance Company challenging the judgment and award dated 11.04.2016 passed by Motor Accident Claims Tribunal, Bangalore (SCCH-11) in MVC No.27/2015 whereby the Tribunal has granted Rs.5,42,698/- with 6% interest. 2. On 17.11.2014 at about 7.00 p.m. the claimant was driving his motorcycle bearing registration No. KA-02-HH-2443 at Kuvempu Circle, near Ring Road, at that time driver of Innova Car bearing registration No. KA-03-D-2059 was driving the same without observing the traffic signal, moving in the same direction, suddenly stopped the Innova Car and further, opened front right side door and dashed against the motor cycle of the petitioner. Due to said impact petitioner/claimant sustained injury to left leg and sustained fracture of left leg patella and he was shifted to Santosh Hospital near COIS Park, Bengaluru. After recovering from the injury claimant has filed MVC No.27/2015 before MACT, Bangalore. 3. To establish his claim, he has examined himself as PW1 and he has examined Dr. Srikanth as PW2 and got marked 23 documents as Exs.P.1 to 23. On the other hand, Insurance Company has examined three witnesses as DWs.1 to 3 and got marked 11 documents as Ex.Ds.1 to 11. On appreciation of documentary and oral evidence, Tribunal has granted a compensation of Rs.5,42,698/- with 6% interest and fastened the liability on the Insurance Company. Aggrieved by the same, Insurance Company has filed this appeal, challenging the judgment and award passed in MVC No.27/2015. 4. Sri. H.C. Vrushabendraiah, learned counsel appearing for the Insurance Company has firstly contended that the driver of the offending vehicle was holding a Driving License to drive LMV non-transport vehicle. But the Tribunal has fastened the liability on the Insurance Company. Secondly, he has contended that as per the evidence of the doctor disability to whole body is 7.2% and the Doctor has deposed the claimant has sustained fracture of left leg. The Tribunal while calculating the loss of future income has added future prospects which is contrary to Law. Hence he sought for allowing the appeal. 5. Per contra, learned counsel appearing for the claimant contended that in view of the law laid down by the Hon'ble Supreme Court in the case of Mukund Dewangan Vs. Oriental Insurance Company Ltd., (2017) 14 SCC 663 held that, license to drive light motor vehicle includes license to drive the transport vehicle. Hence he sought for allowing the appeal. 5. Per contra, learned counsel appearing for the claimant contended that in view of the law laid down by the Hon'ble Supreme Court in the case of Mukund Dewangan Vs. Oriental Insurance Company Ltd., (2017) 14 SCC 663 held that, license to drive light motor vehicle includes license to drive the transport vehicle. In view of the above, the Tribunal is justified in fastening the liability on the Insurance Company. Secondly, she has contended that due to the accident, claimant has suffered grievous injury. He has examined Doctor Srikanth as PW2. In his deposition, the doctor has specifically stated that the whole body disability is 7.2%, due to the same, he cannot do his day to day work. Considering this, the Tribunal has rightly granted future prospects. Hence, she sought for dismissal of the appeal. 6. Heard the learned counsel for the parties and perused the judgment and award passed by the Tribunal. 7. It is not in dispute that the claimant suffered injury due to the rash and negligent driving of Innova Car bearing registration No. KA-3-D-2059 on 17.11.2014. On account of the said accident, the claimant has sustained injuries on his left leg and sustained fracture of left leg and he underwent surgery. The claimant has examined the Dr. Srikanth as PW2. In his deposition he has stated that the claimant has suffered stability component at 5.4% and there is a restricted range of loss of muscle at 11.4% and total whole body disability at 7.2% and the Doctor has further admitted that the fractures are reunited. 8. Taking into consideration the materials on record, the Tribunal has rightly assessed the whole body disability as 7.2% while calculating the loss of future income. The Tribunal has added 50% as future prospects which is unsustainable. Even in the evidence of the Doctor, he specifically stated that the whole body disability is only at 7.2% and all the fractures are re-united. Even though, the claimant has produced some document to show that he has been removed from the service. But the employer has not been examined to prove the same. Under these circumstances, this Court is of the opinion that future prospects at 50% is to be deducted from Rs.26,700/-. Accordingly, loss of future income is calculated as below: Rs.17,800x12x16x7.2/100= 2,46,067/-. 9. Loss of income has been reduced from Rs.3,69,100/- to Rs.2,46,067/-. But the employer has not been examined to prove the same. Under these circumstances, this Court is of the opinion that future prospects at 50% is to be deducted from Rs.26,700/-. Accordingly, loss of future income is calculated as below: Rs.17,800x12x16x7.2/100= 2,46,067/-. 9. Loss of income has been reduced from Rs.3,69,100/- to Rs.2,46,067/-. In respect of second contention is concerned, the Hon'ble Supreme Court in the case of Mukund Devangan supra has held that license to drive LMV includes license to drive transport vehicle. In view of the above, finding of the Tribunal fastening the liability on Insurance Company is justified. Accordingly, the appeal is allowed in part. Judgment and award modified as follows. Heads of compensation Amount awarded by the Tribunal Amount awarded by this Court Towards medical expenses 68,598 68,598 Food, Conveyance, nourishment and attendant charges. 5,000 5,000 Loss of income during laid up period 5,000 5,000 Loss of pain and agony 40,000 40,000 Loss of amenities 40,000 40,000 Loss of income 3,69,100 2,46,067 Future medical expenses 15,000 15,000 Total 5,42,698 4,19,665 10. The Insurance Company is directed to deposit the entire compensation amount, along with an interest 6% p.a. from the date of filing of the claim petition till the date of realization, within a period of four weeks from the date of receipt of the certified copy of this judgment. The Tribunal is directed to disburse the amount in terms of the award passed by the Tribunal after due verification. The amount deposited before this Court shall be transferred to the Tribunal.