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2019 DIGILAW 1186 (KAR)

Pandappa v. Ramesh

2019-06-11

P.G.M.PATIL

body2019
JUDGMENT : P.G.M. Patil, J. The claimant being dissatisfied with the judgment and award dated 7.5.2015, passed in MVC No.622/2013, by the Addl. Senior Civil Judge and Addl. MACT, Ranebennur, has filed this appeal. 2. It is the case of the appellant/claimant before the Tribunal that on 10.5.2013, at about 7.30 hour, he was traveling in TATA Magic vehicle bearing registration No.KA-27/A-5796 from Kumarapattanam Check Post towards Yannihosalli village as an authorized passenger, at that time near brick industry of MRB Manjappa, the driver of the said vehicle lost control and dashed to the lorry bearing registration No.MH-06/AQ-1464. Due to the said accident, the claimant sustained grievous injuries all over his body. He was shifted to Government Hospital, Harihar, where he took first aid treatment. He was shifted to Apoorva hospital, Davangere, where he has taken treatment as inpatient. He took treatment for about 2 months and spent Rs. 1,00,000/- towards medical expenses. Still he requires another sum of Rs. 50,000/- for follow up treatment. The claimant submits that he was hale and healthy before the accident and now he is unable to carryout day to day activities. He is the only bread earner in the family. Therefore he claimed compensation of Rs.11,20,000/- against the owner and insurer of the of fending vehicle. 3. In pursuance of the notice, respondents No.1 and 2 appeared before the Tribunal and respondent No.1 filed objection to the claim petition denying the age, avocation, earning and accidental injuries and treatment taken by the claimant and also denied the manner of accident as contended by the claimant. Further, this respondent states that he is the owner of the offending vehicle and it is insured with respondent No.2, who is liable to pay compensation to the claimant. 4. Respondent No.2 insurance company filed statement of objection denying the claim made in the claim petition. He also denied age, occupation and income of the claimant. He has further contended that the driver of the insured vehicle was not having valid driving licence as on the date of accident. There is a breach of policy condition and hence the insurer is not liable to pay the compensation. 5. On the basis of the pleadings of the parties, the tribunal framed issues. In order to prove his claim, the claimant got examined himself as PW.1 and one witness as PW.2 and got marked 15 documents as Exs.P.1 to P.15. There is a breach of policy condition and hence the insurer is not liable to pay the compensation. 5. On the basis of the pleadings of the parties, the tribunal framed issues. In order to prove his claim, the claimant got examined himself as PW.1 and one witness as PW.2 and got marked 15 documents as Exs.P.1 to P.15. The respondent No.2 has got examined three witnesses as RW.1 to RW.3 and got marked 6 documents as Exs.R.1 to R.6. The learned member of the tribunal after hearing both the parties, passed the impugned judgment awarding compensation of Rs. 2,10,742/- with interest at 6% p.a. from the date of petition tillits realization. The claim petition against respondent No.2 was dismissed and respondent No.1 was directed to pay the compensation to the claimant. 6. The claimant being dissatisfied with the impugned judgment and award has filed this appeal on the grounds that the tribunal has erred in considering the income at Rs. 4,500/- and considering the disability of the claimant only at 9% of the whole body as against the medical evidence of 45% disability. He has also contended that there is no breach of policy conditions and that as per the documents produced by the insurer, the driver of the of fending vehicle had valid driving licence and therefore liability to pay the compensation ought to have been fastened on the insurance company. 7. Heard the learned counsel for the appellant and the respondent insurer. 8. A short question which arises for consideration before this Court in this appeal is as to whether the appellant/claimant has made out grounds for enhancement of compensation and also to saddle the liability on the insurer. 9. The learned counsel for the appellant submitted that as per Ex.R.2, the driver of the offending vehicle had valid driving licence to drive the LMV (NT) vehicle and that the vehicle involved in the accident is a light motor passenger vehicle and therefore in view of the judgment of the Hon'ble Supreme Court in the case of Mukund Dewangan vs. Oriental Insurance Company Limited, (2017) AIR SC 3668, there was no necessity for the driver of the vehicle to obtain a special endorsement for driving LMV passenger vehicle. The learned counsel also further submitted that the compensation needs to be enhanced as sought for. 10. The learned counsel also further submitted that the compensation needs to be enhanced as sought for. 10. Per contra, the learned counsel for the insurer submitted that the owner of the vehicle has not come forward to challenge the liability fastened against him and therefore on this ground the claimant cannot be permitted to seek for saddling the liability on the insurer. 11. It is borne out from the record that the insurer respondent No.2 before the tribunal has produced copy of the driving licence of the driver of the offending vehicle at Ex.R.2 and he has also examined the witnesses. Therefore it is not disputed that the driver of the of fending vehicle was holding a valid and effective driving licence to drive LMV (NT) vehicle. It is also admitted that the vehicle involved in the accident is TATA magic, which falls under LMV passenger vehicle. In view of the judgment of the Hon'ble Supreme Court in the case of Mukund Dewangan (supra), the driver of the vehicle having valid driving licence to drive LMV (NT), need not obtain special endorsement for driving LMV transport or passenger vehicle. Therefore the finding of the tribunal saddling the liability on the owner of the of fending vehicle on the ground that there is a breach of policy condition as the driver of the offending vehicle was not holding a valid driving licence to drive the LMV passenger vehicle cannot be accepted. 12. The contention of the learned counsel for the insurer that in the absence of owner of the offending vehicle having filed any appeal against the said finding, the claimant cannot be permitted to contend to saddle the liability against the insurer has no merit. It appears, when the matter was decided by the tribunal, the judgment of the Hon'ble Supreme Court stated supra was not available as such the tribunal proceeded to exonerate the insurer and fastened the liability against the owner. Now in view of the judgment of the Hon'ble Supreme Court stated supra, the insurer has to be made liable to pay the compensation. Therefore it is just and necessary to modify the judgment and award passed by the tribunal exonerating the insurer from the liability has to be set aside. 13. The claimant has contended before the tribunal that he was a coolie and earning Rs. 15,000/- per month. Therefore it is just and necessary to modify the judgment and award passed by the tribunal exonerating the insurer from the liability has to be set aside. 13. The claimant has contended before the tribunal that he was a coolie and earning Rs. 15,000/- per month. However he has not produced any positive evidence in order to prove his income. Therefore, the tribunal on notional basis considered the income of the petitioner at Rs. 4,500/- per month. Considering the age of the claimant, his avocation and that the accident in question occurred on 10.5.2013 and also considering the guidelines provided for settlement of cases before the Lok Adalat, it is just and necessary to consider the income of the claimant at Rs. 7,000/- per month in order to award compensation towards loss of future earning capacity. 14. The tribunal has considered the permanent disability of the claimant at 9% of the whole body, on the basis of the evidence of PW.2. Admittedly PW.2 is not a treated doctor. He has issued the disability certificate Ex.P.12 on clinical examination stating that the claimant is suffering from 45% permanent physical disability and loss of physical functioning with respect to right elbow, right shoulder and right chest region. Therefore the claimant is suffering from permanent disability of the upper limb to the extent of 45% and as such it is just and proper to consider the permanent disability of the claimant at 1/4th which comes to 11% and it is necessary to consider the permanent disability of the whole body of the claimant at 10% for the purpose of calculation of compensation towards loss of future earning capacity. 15. Therefore, loss of future earning capacity of the claimant shall be assessed by considering his income at Rs. 7,000/- per month and considering the permanent disability of the whole body at 10%, which comes to Rs. 1,26,000/- (Rs. 7,000/- x 12 x 10% x 15), as against Rs. 72,900/- awarded by the tribunal. Rs. 35,000/- towards pain and suffering, Rs. 87,842/- towards medical expenses, awarded by the tribunal are left undisturbed. Rs. 5,000/- is awarded towards conveyance charges, diet, food and nourishment, attendant charges etc., as against Rs.4,000/- awarded by the tribunal . Rs. 10,500/- is awarded towards loss of income during laid up period as against Rs. 6,000/- awarded by the tribunal. Rs. 35,000/- towards pain and suffering, Rs. 87,842/- towards medical expenses, awarded by the tribunal are left undisturbed. Rs. 5,000/- is awarded towards conveyance charges, diet, food and nourishment, attendant charges etc., as against Rs.4,000/- awarded by the tribunal . Rs. 10,500/- is awarded towards loss of income during laid up period as against Rs. 6,000/- awarded by the tribunal. Rs. 15,000/- is awarded towards loss of amenities and enjoyment of life as against Rs. 5,000/- awarded by the tribunal. 16. Thus, the appellant/claimant would be entitled for a total compensation of Rs. 2,79,342/- as against Rs. 2,10,742/- awarded by the tribunal . Hence the point for consideration is answered accordingly. In the result, this Court proceed to pass the following: ORDER The appeal is allowed in part. The judgment and award dated 7.5.2015, passed in MVC No.622/2013, by the Addl. Senior Civil Judge and Addl. MACT, Ranebennur, so far as exonerating the liability of the insurer and saddling the liability on the owner of the vehicle is set aside. It is ordered that respondents No.1 and 2 are jointly and severally liable to pay the compensation awarded to the appellant/claimant. The appellant/claimant is awarded with compensation of Rs. 2,79,342/- with interest at the rate of 6% p.a. from the date of petition till realization. Respondent No.2 insurance company is directed to deposit the compensation amount with interest before the tribunal within a period of eight weeks. Order as to deposit and disbursement of the compensation amount shall be in terms of the order of the tribunal.